Wave Energy

Baroness Miller of Chilthorne Domer: asked Her Majesty's Government:
	Whether the action they have taken to encourage the development of wave power is commensurate with their view stated on the Department of Trade and Industry website that "wave energy has the potential to provide as much renewable energy as the wind industry".

Lord Sainsbury of Turville: My Lords, although wave energy is not currently economic, we believe that in the longer term it has the potential for significant cost reduction. We are therefore providing support to help to realise that potential.
	In August last year, we announced a £50 million marine renewables deployment fund that will provide continued support to wave and tidal stream power technologies. That builds on the £20 million of support for research and development provided to the sector since 1999 and the £1.2 million provided towards the European Marine Energy Centre in Orkney. Additionally, the Carbon Trust has invested more than £6 million in marine energy projects, and the Engineering and Physical Sciences Research Council has a £2.6 million SUPERGEN marine programme.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for his reply. Does he agree that of course this is not economic yet because the economies of scale needed in any energy production simply have not been reached? Furthermore, does he agree that the marine technologies of wave and tidal power are particularly desirable because of their predictability? Once the structures are in place, that power is free, unlike, for example, imported gas. In addition, they leave no legacy, such as nuclear waste, for which the country has to pick up the bill later. With those points in mind, will the Minister ensure that the regulatory system—which seems to be an impediment because receiving the consents needed for work in marine areas is a real tangle of bureaucratic red tape—is smoothed out and made much simpler?

Lord Sainsbury of Turville: My Lords, I am not certain that in this case there is an issue of economies of scale. The position is that the cost of wave and tidal energy is still orders of magnitude higher than any other at the moment. At about 15 to 20p per kilowatt hour, it is still very expensive. It is also not true to say that there is no question of legacy. There is a real question of how to decommission barrage lagoons and what impact that has on the environment. I am not aware that the regulatory system is particularly complicated. Clearly, environmental impact should be applied to this in the same way as it is to any other energy project.

The Lord Bishop of Liverpool: My Lords, is the Minister aware that the large tidal range along the west coast of England and Wales provides some of the most favourable conditions in the world for the utilisation of tidal power? If all reasonable exploitable estuaries were utilised, the annual generation of electricity from tidal power plants could achieve a potential of 50 terawatt hours, equivalent to about 15 per cent, according to the DTI survey, of current UK electricity consumption.

Lord Sainsbury of Turville: My Lords, I believe that that is a correct estimate but, as I said, at the moment the issue is one of cost. The cost is something like five times higher. As is clear to everyone here, in energy policy you have to satisfy questions of cost, energy security and the environment and you have to get the right mix of energy sources to achieve those three objectives.

Baroness O'Cathain: My Lords, the right reverend Prelate has said that tidal power would provide 15 per cent of our current electricity generation. If tidal power were developed to its maximum and became applicable, how much would it generate, bearing in mind that there would be increased demand for electricity generation? Would it still be 15 per cent? If so, are the Government saying that another 15 per cent would be provided by the wind industry? I have not seen those figures before.

Lord Sainsbury of Turville: My Lords, the right reverend Prelate made the point that we have in this country very favourable conditions for tidal and wave generation. Having said that, I do not think that we have made any prediction about what could be achieved in terms of each energy source in this way. It clearly depends not only on favourable conditions but on the cost and development of technologies. We believe that the spread between different technologies should be decided by the marketplace and not by attempts to make government predictions.

Lord Livsey of Talgarth: My Lords—

Viscount Tenby: My Lords—

Noble Lords: Cross Bench.

Viscount Tenby: My Lords, I wonder whether I could tempt the Minister in one particular area. How much attention and money is being spent on one specific area; namely, harnessing the Severn bore?

Lord Sainsbury of Turville: My Lords, on 13 January last year, I gave in detail the exact reasons why we did not think that we should go ahead with the Severn barrage project at the moment. I remind noble Lords that it would cost between £10 billion and £14 billion and that it raises very strong environmental issues.

Lord Livsey of Talgarth: My Lords—

Lord Tomlinson: My Lords—

Noble Lords: These Benches.

Baroness Symons of Vernham Dean: My Lords, can we calm down? We have time for both questions. Perhaps we can take the Labour question first, then the Liberal Democrat question.

Lord Tomlinson: My Lords, I thank my noble friend for giving so much detail on the potential for tidal wave energy, even though it is uneconomic. Will he now give us something of equivalent detail on what we are doing to preserve the nuclear option for generation of electricity, should the target of 20 per cent of renewables not be achieved? It is all very well having great detail on what appears to be unattainable but can we have parallel details on that which we will need?

Lord Sainsbury of Turville: My Lords, I have previously given examples of the amount of research we are doing to keep the nuclear option open. I am very happy to send that information to my noble friend if he requires it again.

Lord Livsey of Talgarth: My Lords, the research that has been done in Swansea Bay on tidal lagoons is extremely promising. The Severn Estuary has the second highest tidal race in the world. One problem that came to the fore after a meeting that was organised by the noble Baroness, Lady Miller of Chilthorne Domer, was that there was inadequate money for the research and development that would make tidal power economic. May I suggest to the Minister that the present contribution of £50 million to the industry is inadequate, particularly when compared with that given to wind power?

Lord Sainsbury of Turville: My Lords, the Swansea Bay proposal uses older technology. It is technically feasible. There considerable disagreement about the cost of the construction and the amount of energy that it will produce. If the figures that have been produced by the promoters of the scheme are correct, there should be no problem with obtaining commercial funding for it from the market. As no innovation is involved, it is not appropriate as an R&D project.

Armed Forces: Electoral Registration

Lord Garden: asked Her Majesty's Government:
	What measures they have taken to ensure that members of the Armed Forces were registered by 11 March for participation in the elections on 5 May.

Baroness Crawley: My Lords, we have been working with the Electoral Commission to raise voting awareness in the services. An information campaign began in January with the publication of a Defence Council instruction, providing full information and practical help on how to register and vote. It was backed up with leaflets, information on the MoD's website, articles in in-house publications, and support from the British Forces Broadcasting Service.

Lord Garden: My Lords, I am grateful to the Minister for her helpful Answer. I am sure that her brief shows her that the operation was not quite as smooth as she describes.
	Given the widespread concerns about the poor levels of registration among service voters, will the Minister ensure that the Ministry of Defence will put in train a survey to find out how many service people are registered and in what way, so that the Electoral Commission, when it comes to carry out its investigation, which it has told me it is going to do after the election, will have proper data to look at?

Baroness Crawley: My Lords, the Ministry of Defence and the Electoral Commission are very enthusiastic about getting as many service people to vote as possible—in the county council elections on 5 May. As to a survey, I can only repeat what my honourable friend Ivor Caplin said in the House of Commons. He said:
	"We do not seek information from individuals on whether they are registered to vote and whether they exercise their vote; that would be an unnecessary invasion of privacy by an employer. There is therefore no certain way of determining the number of service personnel registered to vote".—[Official Report, Commons, 8/12/04; col. 124WH.]

Lord Truscott: My Lords, will my noble friend explain why changes were made to the way in which service personnel could vote? Can she answer the criticism that the new system is more complicated as a result?

Baroness Crawley: My Lords, the old system, which was in place before the Representation of the People Act 2000, which was supported in all parts of the House, was to some extent unreliable. It depended on the individual service person keeping his details up to date. It is likely that many service personnel never met that requirement because there was no annual mechanism in place to remind them to do so. Although registered, they were unable to vote. They now have that reminder.

Lord Astor of Hever: My Lords, the Minister mentioned the website. Can she confirm that, until very recently, it carried guidance to service voters that was four years out of date? Do the Government mean to disenfranchise the Armed Forces, or was that merely incompetence?

Baroness Crawley: My Lords, of course the Government do not wish to disenfranchise the Armed Forces. I would show the noble Lord the very useful leaflet—a visual aid—that was sent out in January to 100,000 service personnel in all garrisons, units and ships. Yes, there was an inaccurate website in December, and the inaccuracy was rectified within hours of it being brought to the MoD's attention. It was not one of the main websites; it was a small, linked website.

Lord Redesdale: My Lords, if the wonderful leaflet that the Minister has just shown us was sent out at the end of January, why did it not arrive until the first week in March? Is she saying that the Post Office is more inefficient than some Answers in the past have suggested, or is there a real problem with the distribution of the leaflets?

Baroness Crawley: My Lords, I was not aware that there was a problem with the distribution of the leaflets. I will certainly take up the noble Lord's point and write to him. As well as the leaflets, there were television and radio broadcasts. My honourable friend Ivor Caplin spoke on services radio about how important it was for service personnel to vote. As well as the leaflets, there were many other means of information.

Lord Davies of Coity: My Lords, does the information that has been collated show the proportion of service personnel voting in a general election to be higher or lower than that of the general public?

Baroness Crawley: My Lords, I do not know the answer to that, and I do not believe that it is possible to give an answer to that because people voting as service personnel form only a percentage of people in the services along with those who might vote as an ordinary voter, which they have been able to do since 2000, or as an overseas voter. So we cannot break that information down.

Lord Roberts of Llandudno: My Lords, is the Minister able to give us an assurance that when ballot papers are distributed they will reach the personnel who are entitled to vote in time for them to be completed, returned and included in the count?

Baroness Crawley: My Lords, every possible effort will be made for that to happen.

China: EU Arms Sales Embargo

Lord Howell of Guildford: asked Her Majesty's Government:
	What effect they assess that the lifting of the European Union embargo on weapons to China will have on relations between the United Kingdom, Japan and Taiwan.

Baroness Symons of Vernham Dean: My Lords, there has been no decision on lifting the embargo; and to support any such decision this Government would have to be satisfied that it was the right thing to do. The lifting of the embargo should not result in the increase of arms exports to China, as the European Council has made clear. The United Kingdom Government have been discussing the issue with all our friends, including through our official relationship with Japan and our unofficial relationship with Taiwan. As my right honourable friend the Foreign Secretary has said, there are problems now because of the concern raised by the anti-secession law passed on 14 March in China.

Lord Howell of Guildford: My Lords, I am very grateful for that reply, and for the change of tone—indeed, the change of policy—that it implies. I am sure that the Minister is aware that it is not only the Americans who are concerned, but that many people in Japan and the Pacific region regard it as absolute madness that anyone should propose lifting the weapons embargo now, with the increasing tension in the Taiwan straits and the massive build-up of Chinese military expenditure.
	If the United Kingdom's policy is now to toughen the embargo with a new code of conduct, which Ministers have said is the case, why do we not just go ahead and do that, and reassure our best friends in the Pacific—that is, Japan, the Americans and others—maintaining the collaboration with the US industry that is needed by our industries and leaving our European neighbours to do what they wish? If they want to damage themselves and damage stability, let them do so. Why do we not just go ahead with our own policy, in our own interests?

Baroness Symons of Vernham Dean: My Lords, as we have discussed before, although the word "embargo" implies a total ban on exports of all things on the military list, as the noble Lord will know, there are exports of goods from the military list. Those were published last year, and there were something in the region of 140 or so individual export licences, not all of them from the military list but relating to other matters of concern in that area.
	The fact is that there is not a change of policy on this, but there is certainly a change of nuance in my Answer. Let me be clear: it is entirely right and logical that we should proceed in lifting the embargo and strengthening the EU code, because it is already a better instrument for ensuring that we have proper regulation of arms exports. That is the logical position. But I agree that in view of what happened in China on 14 March in relation to the secession legislation that was passed, a different political landscape is emerging. That is why my right honourable friend the Foreign Secretary, when he was interviewed on this matter last week, said that there were now political problems, and greater political problems than there had been, in lifting that embargo. The shift is inherent, of course, in the anti-secession legislation passed in China.

Lord Davies of Coity: My Lords, given the size of the Chinese armed forces and the size of the arsenal that they already have, is it felt that by lifting the embargo the perceived danger from China will increase—or will it remain the same?

Baroness Symons of Vernham Dean: My Lords, my honest opinion is that the position remains the same. It is enormously important to remember that the embargo currently in force is not legally binding. The code of conduct that we are talking about is already legally binding on this country and is a stronger instrument. The embargo is on lethal weapons alone; there is no embargo on many technical matters that the Chinese wish to acquire. The way in which we regulate those exports is already under the EU code of conduct.
	The position logically has not changed at all, but I agree that there is a different political environment because of what has happened in China.

Lord Garden: My Lords, does the Minister not agree that, regardless of the practical effects of lifting the embargo, it is a diplomatic signal of some importance? Even before 14 March, the question was really whether there had been a change in human rights approaches in China that warranted such a lifting. Does she agree that there had been no change?

Baroness Symons of Vernham Dean: My Lords, I do not agree that there had been no change. There have been changes. There are still very considerable concerns over human rights in China, as the noble Lord, Lord Garden, is aware. I do not believe that there has been no change at all; there have been changes in a number of respects. There is certainly a much better dialogue with China on human rights than there was when the embargo was imposed.
	The noble Lord has simply used different language from the language that I used. What he called a diplomatic signal I called a political message. I believe that we are pretty much on the same line over this.

Lord Faulkner of Worcester: My Lords, my noble friend's announcement of the change of nuance will be very widely welcomed. Does she agree with Condoleezza Rice, who said last week in very forceful terms that as the United States has had responsibility for maintaining peace and stability in the Pacific region, and particularly in the Taiwan straits, since 1950, it has a very legitimate interest in the outcome of these negotiations involving the sale of arms from Europe? Does she not agree that it would be inconceivable that weapons made in France or Germany could be used against American warships?

Baroness Symons of Vernham Dean: My Lords, there are so many assumptions in the question that my noble friend asked that it is difficult to disentangle them. The code itself would ensure that that sort of weaponry was not exported to China, so under the code I do not believe that it would be possible for such exports to be made by a European country. Of course, we have a great deal of agreement with the Americans on matters of foreign policy. But I am bound to say at your Lordships that I usually stand at this Dispatch Box defending the fact that the United Kingdom has an independent foreign policy. We shall take a decision about the matter, having consulted all our friends and allies. We shall take the decision that we believe is right and in the interests of this country.

Lord Pearson of Rannoch: My Lords, if we do retain an independent foreign policy, I am not sure that I heard the Minister reply to the question from my noble friend Lord Howell of Guildford on whether the Government were considering going it alone on this matter.

Baroness Symons of Vernham Dean: My Lords, I do not really see that the question of "going it alone", as the noble Lord puts it, arises here. The Question before us at the moment relates to a European embargo or moving to a European code. The noble Lord, Lord Howell, asked me why we could not keep the embargo in place and move to toughening the code at the same time. That is what the noble Lord would like to do; he would like to ensure that we do not ease up on the political signal while strengthening the practicalities. It is interesting that the Question asked by the noble Lord, Lord Howell, acknowledges that it is in fact the code that would be used to do the strengthening, not the embargo.

Lord Wallace of Saltaire: My Lords, I understand from the figures that the United States' military-use exports to China over the past two or three years were larger than those from all member states of European Union. Will Her Majesty's Government take up with the United States the desirability of tightening its controls?

Baroness Symons of Vernham Dean: My Lords, the question of what is and is not exported has to be examined in very great detail. I have a list here of stranded individual export licences from this country in the past year. There are 40 items on the military list and 136 other items, as well as four other non-specified items. The question is, what is being exported, not the number of exports or the volume or value. It is what it is.
	That is the great strength of the European code, because the code ensures that all countries in the European Union bound by it must look at whether the export would be likely to run the clear risk of being used for external aggression, internal repression or, of course, fuelling regional conflict. Those are the three great tests. I look at those licences, not to go to that part of the world but to other parts, and I know how rigorously that code is observed.

Lebanon

Lord Archer of Sandwell: asked Her Majesty's Government:
	Whether the recent movement of Syrian troops within Lebanon is a satisfactory fulfilment of United Nations Security Council Resolution 1559.

Baroness Symons of Vernham Dean: My Lords, the withdrawal of Syrian troops towards the Bekaa valley and Syria is a first step towards compliance with United Nations Security Council Resolution 1559. To comply fully, Syria must demonstrate respect for Lebanon's sovereignty, territorial integrity, unity and political independence. We shall continue to press Syria to fulfil those requirements before the Lebanese elections.

Lord Archer of Sandwell: My Lords, while thanking my noble friend for that Answer, and, of course, accepting that the withdrawal of Syrian forces is a significant achievement, will she confirm or comment on reports that the Iranian Revolutionary Guard is present in Beirut, and busily training members of Hezbollah? Does she accept that the present Iranian regime and its revolutionary guard are not celebrated for their contributions to peace and concord? Given that the peace process is very susceptible at the moment to disruption by acts of terrorism, does she agree that the further the revolutionary guard is removed from the scene, the better?

Baroness Symons of Vernham Dean: My Lords, we have made inquiries about this and we are not aware of any IRGC presence in Lebanon. But, of course, the purport of UNSCR 1559 is clear: that all remaining foreign forces from wherever they come should withdraw from Lebanon. However, in relation to the first part of my noble and learned friend's Question, the withdrawal has not yet been fully achieved. There has been a great deal said on withdrawal by the Syrian Government but that has to be followed by full implementation of that withdrawal in relation not only to Syrian troops but also to the Syrian intelligence apparatus and, of course, to their security forces as well.

Lord Howell of Guildford: My Lords, further to the Question of the noble and learned Lord, Lord Archer, surely the Government are aware that there are Iranian troops on Lebanese soil and that Iran has been pouring money—$40 million in recent months—and Katushka missiles and various other equipment into the hands of Hezbollah in Lebanon. Is that not a very serious consequential threat as and when the Syrians withdraw? What can we do to reinforce and help the Lebanese people to avoid having new masters in place of their past ones?

Baroness Symons of Vernham Dean: My Lords, the whole question of the actions of Hezbollah in Lebanon is extremely difficult because Hezbollah holds elected office in Lebanon as well as having all the connections of which we are all too well aware and to which the noble Lord has alluded. So far the Lebanese security forces have demonstrated that they are able to deal with very considerable security challenges that have been present in Lebanon, particularly in Beirut in light of the demonstrations that have occurred over the past few weeks. They have shown that they are capable of dealing with the challenges that have been presented to them. We have to remain very watchful on these points. We are aware of some of the alleged connections with Hezbollah, not only as regards Iran but also as regards other countries in the region which may not be entirely careful in their support for some very questionable groups.

Lord Corbett of Castle Vale: My Lords, will my noble friend confirm that there is a second part of Security Council Resolution 1559 which calls for the disbanding and disarmament of all Lebanese and non-Lebanese militias in Lebanon, which surely must include Hezbollah? Is it not the case that earlier this year our own Prime Minister and Foreign Secretary condemned Iran for sponsoring terrorism at home and abroad? What actions will the Government take to get the Iranians to withdraw their forces and to see that Hezbollah is disbanded?

Baroness Symons of Vernham Dean: My Lords, my noble friend asks what actions the Government will take. The Government have been very clear in our view that the Lebanese must be left to have full control and full sovereignty of their country. I myself was in Lebanon a couple of weeks ago. I met not only with members of the government but, as your Lordships would expect, with members of the opposition. That message was not only very fulsomely given on my part, it was extremely well received in Lebanon and was, indeed, given full coverage in the media. I am bound to say to the noble Lord that it is at the moment a question of diplomatic pressure which we must keep up to ensure that the Lebanese people will be able to have free, unfettered elections in May without outside interference not only from foreign countries but also from the militias in the way that my noble friend has indicated.

Baroness Northover: My Lords, will the noble Baroness comment on the position of the Lebanese president whose term of office was extended beyond what the Lebanese constitution allowed after Syrian pressure on the Lebanese parliament? Are there moves to challenge him now and, if so, what effect would that have on the stability of Lebanon?

Baroness Symons of Vernham Dean: My Lords, it was, indeed, that extension of the Lebanese president's period of office which triggered UNSCR 1559, which this country supported. Sadly, it was at that stage as well that Rafiq Hariri, the then Prime Minister, resigned office and as we all know, tragically Mr Hariri was assassinated. There is much speculation about who was behind that assassination, but it is clear that that assassination in itself has triggered the most enormous resurgence of Lebanese patriotism and a Lebanese desire to see foreign soldiers off their soil and to regain their own sovereignty. The noble Baroness asks what we are going to do. I think that it is happening at the moment in Lebanon, particularly in Beirut. I look forward to the elections in May when I hope that the voice of the Lebanese people will be heard clearly.

Lord Monson: My Lords, does the noble Baroness agree that even more menacing than the Syrian army, who at least behave correctly on occasion, as I have observed, are the thuggish plain clothes men to whom she very briefly referred—the secret policemen, agents provocateurs and so on? Is it not absolutely vital that those too be removed from Lebanon?

Baroness Symons of Vernham Dean: My Lords, yes, that is emphatically the case.

Business

Lord Grocott: My Lords, later today, immediately after the debate on the Procedure Committee report, my noble friend Lady Symons, with the leave of the House, will repeat the Answer to a Question which is being asked in another place on the legal advice concerning military action in Iraq. Following that, with the leave of the House, my noble friend the Leader of the House will repeat a Statement which is being made in another place on the European Council of 22 to 23 March.

Members' Expenses

Baroness Amos: My Lords, I think this is the most popular thing that I have ever done. I beg to move.
	Moved to resolve, That for the purposes of the resolutions of the House relating to the entitlement to recover expenses of travel, office costs and day and overnight subsistence, attendance at the House on Friday 11 March shall constitute attendance at a separate Sitting of the House.—(Baroness Amos.)

On Question, Motion agreed to.

Pensions Appeal Tribunals (Armed Forces and Reserve Forces Compensation Scheme) (Rights of Appeal) Regulations 2005

Baroness Crawley: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the draft regulations laid before the House on 13 January be approved [6th Report from the Joint Committee].—(Baroness Crawley.)

On Question, Motion agreed to.

Criminal Justice and Police Act 2001 (Amendment) Order 2005

Extradition Act 2003 (Part 3 Designation) (Amendment) Order 2005

Immigration (Leave to Enter and Remain) (Amendment) Order 2005

Immigration and Asylum (Provision of Accommodation to Failed Asylum-Seekers) Regulations 2005

Criminal Procedure and Investigations Act 1996 (Code of Practice) Order 2005

Lord Rooker: My Lords, with the leave of the House, I beg to move the five Motions standing in my name en bloc, all of which were debated in Committee a couple of afternoons ago. I beg to move.
	Moved, That the draft orders and regulations laid before the House on 10, 23, 21, 7 and 21 February respectively be approved [9th, 11th, 10th, 10th and 11th Reports from the Joint Committee respectively].—(Lord Rooker.)

On Question, Motion agreed to.

New Opportunities Fund (Specification of Initiative) Order 2005

Lord McIntosh of Haringey: My Lords, this order was considered in Grand Committee. I beg to move.
	Moved, That the draft order laid before the House on 9 February be approved [9th Report from the Joint Committee].—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Contracting Out (Functions in Relation to Cultural Objects) Order 2005

Lord McIntosh of Haringey: My Lords, this order was considered in Grand Committee. I beg to move.
	Moved, That the draft order laid before the House on 24 February be approved [11th Report from the Joint Committee].—(Lord McIntosh of Haringey.)

On Question, Motion agreed to.

Child Benefit Bill

Read a third time, and passed.

Procedure of the House: Select Committee Report

Lord Brabazon of Tara: rose to move, That the First Report from the Select Committee be agreed to.

Lord Brabazon of Tara: My Lords, the report before the House today has, as usual, a number of elements to it, and I shall seek to refer briefly to them all. However, the amendments in the name of the noble Lord, Lord Rodgers of Quarry Bank, and of the noble Baroness, Lady Lockwood, will inevitably focus much of our attention on the issue of the general debate day. The House will recall that this matter has twice been debated in recent years. In 1999, the House voted 225:87 against a change. On the last occasion, in January 2001, it again voted against a change, that time by 130:128, a majority of just two.
	The only significant changes to our procedures since then have been the move to sitting at 11.00 a.m. on Thursdays and the target rising time of 10.00 p.m. on other days. The Procedure Committee agreed that it would not be able to make a conclusive recommendation and recognised that it was a matter that the House as a whole should decide. Accordingly, I shall not seek to influence the debate, and I look forward to hearing what your Lordships have to say.
	I shall, however, say a brief word about the procedure that your Lordships might observe today. Once I have sat down, and the Question has been put, the noble Lord, Lord Rodgers of Quarry Bank, will move his amendment. A debate will then follow in accordance with the speakers' list that has been circulated. I know that some noble Lords would prefer discussion of the general debate day to be separated from discussion of other items in the report, but that is not our practice and it would, I venture to suggest, be likely to prolong proceedings. When noble Lords who wish to speak have done so, I shall attempt to reply. The House will then take a decision on the amendment proposed by the noble Lord, Lord Rodgers. If it is agreed to, I understand that the noble Baroness, Lady Lockwood, will not move her amendment and the Question will then be put on the Motion as amended. If, on the other hand, the amendment proposed by the noble Lord, Lord Rodgers, is rejected, the noble Baroness will move her amendment formally, and I recommend that your Lordships should then agree to it without further debate or division.
	I turn now to the other matters in the report. The proposed amendments to the Standing Orders are to reflect the change in our proceedings on a Thursday and to reflect certain provisions of the Civil Contingencies Act 2004. If your Lordships in due course approve the report, a Motion to give effect to the amendments will be tabled by the Leader of the House. The most complex item in the report is that on exchanges between the Houses on public Bills. The report proposes changes in the way that the House deals with the final ping-pong stages of Bills. Most importantly, it proposes that it should be possible to debate and take a decision on packages of related amendments together, instead of deciding separately on all elements of the package.
	There are three main reasons for that proposal. First, the Commons has been dealing with amendments at the ping-pong stages in this way for some 10 years. It is therefore increasingly difficult for this House to maintain its traditional procedures, where each proposition from the Commons is decided separately. Secondly, there is a danger that the different procedures in the two Houses can lead to different views of the double insistence rule, and could, as in the Planning and Compulsory Purchase Bill last Session, result in ambiguity about whether a Bill has been lost. Thirdly, the Procedure Committee took the view that dealing with amendments in packages would allow some streamlining of the complex procedures at those stages. We considered that that could be beneficial to the House, as it would indicate more clearly than previously the connections between the different Motions on the Order Paper.
	With the agreement of the usual channels, an experiment was carried out on the Prevention of Terrorism Bill two weeks ago using the procedures recommended in the report. I hope that the House will agree that the proceedings on those exchanges were considerably simplified as a result. I conclude by confirming that the Clerk of the House of Commons was consulted on the terms of this passage in the report, and he agrees that it is consistent with the joint statement agreed by him and the Clerk of the Parliaments last year, which is appended to the report.
	Finally, I come to the provision of time for debate of committee reports. Your Lordships may recall that when last we debated a report of the Procedure Committee, that was the subject of considerable discussion, and I undertook to invite the Procedure Committee to examine the matter further. I am now happy to report a number of developments. New administrative arrangements for forecasting and monitoring the demand for debates have produced significant improvements, and I think I am right in saying that most Select Committee chairmen are satisfied that that is the case. The section of the Notices and Orders of the Day entitled No Day Named Part III now lists only those reports that are actually ripe for debate and so gives a more accurate picture of what one might reasonably describe as the queue.
	We have also seen a successful debate in the Moses Room on a Motion in the name of the noble Lord, Lord Peston. We have therefore concluded that no procedural change is necessary at this time, but that the matter should be reviewed further next Session. We also concluded that Session 2003–04 is a reasonable base-line against which to measure whether any debates taken in the Moses Room are genuinely additional to debates in the Chamber. I beg to move.

Moved, That the First Report from the Select Committee be agreed to.—(The Chairman of Committees.)
	The text of the report can be found at: www.publications.parliament.uk/pa/ld200405/ldselect/ldprohse//48/4802.htm.

Lord Rodgers of Quarry Bank: rose to move, as an amendment to the Motion, at end to insert "but with the omission of paragraph 20(a)".

Lord Rodgers of Quarry Bank: My Lords, as the Chairman of Committees explained, I tabled the amendment to resolve the choice set out in paragraphs 17 to 21 of the report. As the Chairman of Committees said, the question of switching the general debate day was first discussed in the House on 22 March 1999 and, as the report explains, again on 23 January 2001. On that occasion four years ago, I moved the successful amendment. I have no complaint about revisiting the matter. Since then, we have almost 100 new Members in the House and we have lost some of our former colleagues. Other Members are entitled to change their views. I only ask newer Members in particular not to consider this as a trivial matter, a detail of procedure on the fringe of the larger issue of reform discussed in the House two months ago.
	I agree that a switch between Wednesday and Thursday is almost certainly more convenient for a majority of Members. In effect, the House would have a two and a half day working parliamentary week and, except for a few days in the spring and summer, Members would have no further serious obligations on Thursdays. We would arrive, if we chose, on Monday afternoon, and more often than not we would leave just before dinner on Wednesday or probably soon after. In the debate six years ago the noble Lord, Lord Graham of Edmonton, was eloquent on the case for change, and the noble Lord, Lord Gordon of Strathblane, and the noble Baroness, Lady Lockwood, among others, made a strong case for change on the basis of inconvenience for those living and working in the north, Scotland and the other territorial extremities. The case for change was repeated in the debate four years ago rather more forcefully. I fully understood then, and I understand now, the difficulties and irritation of travelling back and forth twice a week when that seems necessary. For Members coming from distant places, it would be much easier and more convenient to switch Wednesday and Thursday.
	It would also be generally convenient for busy Ministers and Government Back-Benchers even if they live and work in or near London, although in that case I am rather less sympathetic about hardship. If there was a switch, a majority of Ministers would be free on Thursday to get on with their work in their departments or stretch their visits around the country or abroad. There would be fewer unexpected events to dislocate their orderly business. I readily admit that for 11 years as Minister in the Commons I occasionally found Parliament rather a nuisance that absorbed too much of my time, but Ministers should always remember that Parliament comes first and government follows. As for Back-Benchers, there is nothing more wearisome than hanging around just in case there might be an unexpected Division, but that is the price one pays when one party wins an election and implements its legislative programme.
	Nowadays, the House is expected to pack up on Thursday about 7 p.m., but if there was a switch Thursday would become a relaxed day with few obligations; the beginning of a long, long-weekend. That begs the question of whether switching Wednesday and Thursday is significant. Are we making rather too much fuss? Many of our Members who make an immense contribution to the work of the Chamber and in committees successfully combine that with important obligations outside. I believe that they will not reduce their parliamentary work if the House effectively has a two and a half day week. But I also believe that sooner or later, perhaps imperceptibly or over a Parliament, Thursday will begin to die. There will be a poorer attendance at Questions and fewer speakers in general debates. There will be fewer Members in the Corridors and Lobbies, the Library, the Guest Room, the Bishops' Bar, the Dining Room and elsewhere. This place will be like any half-closed place of work—empty of life and flat.
	The processes of Parliament are more complex and subtle than an office or institution in either the public or the private sector. The personal contacts and relationships within and across parties help to create the fabric of its effective role. A two and a half day legislative week will give this Executive or any executive—the government of the day—a little more freedom at a time when, by common consent, they are becoming much too dominant.
	I recognise convenience. I also acknowledge the family-friendly spirit of the age. I accept the need to strike a balance between obligations and interests. But we should hold fast to Parliament, of which this House is an integral part, and not allow the erosion of its weight and influence. I beg to move.
	Moved, as an amendment to the Motion, at end to insert "but with the omission of paragraph 20(a)".—(Lord Rodgers of Quarry Bank.)

Baroness Lockwood: My Lords, as the two amendments are being taken together, it is appropriate that I speak now. My amendment is of course contradictory to that of the noble Lord, Lord Rodgers. It would, in effect, sanction the changing of the general debates from Wednesday to Thursday. My arguments too are different from and contrary to his. I submit that the House is now being given a much greater opportunity to hold the Government to task in a number of ways, which I will explain. On the previous occasion when we debated the matter, it was a three-day working week; it is now a two and a half day working week. But the workload of the House has increased considerably, and there are many avenues through which Members make their contribution to the work of the House without sitting for any length of time in this Chamber.
	The House has changed considerably. It has changed in its membership; as the noble Lord, Lord Rodgers, said, nearly 100 Members—I think that it is 96—have entered it since we previously debated the issue. If we take the changes in membership and in how we work that have taken place since 1999, they are considerable and important.
	In the 1999 discussion, the focus of the debate was on the importance of general debates on Wednesdays. It was even held by some that those debates were of equal importance to the scrutiny of legislation. I found that argument difficult to accept then, and it is impossible to accept it at present. Of course the Wednesday general debates are useful and of interest. On occasion, they are extremely important—when the House is looking at some issue that is non-partisan but perhaps political or social and emerging into the public arena, or when the matters are rather sensitive and difficult to debate in other forums.
	However, general debates on Wednesdays have to be taken in the context of the business of the House as a whole. In all the consideration given to the role of this Chamber when we have debated the future of the House of Lords, there has been unanimity on the overriding importance of the House as a revising Chamber. The methods of revising and calling the Government to account have been extended, and I shall mention some of them.
	We now take the Committee stage of some Bills off the Floor of the House and put them into Grand Committee. Some minor business of the House that does not necessarily require the whole attention of everyone takes place in the same way. That enables the House simultaneously to consider two sets of business. Many Members did not like the change to the way in which we handled Committees. I confess that I had reservations about it myself; I did not realise until I came to this House how many conservative strains there were in my nature. But that change has been very useful and valid. We need the time to deal, at different times of the week, with different sets of government and House business.
	More draft Bills are now considered by a joint pre-legislative scrutiny committee. Many Bills are considered by the Joint Committee on Human Rights. The House's own Delegated Powers and Regulatory Reform Committee has grown in influence and power. That has all increased the opportunities of the House to influence policy and call the Government to account.
	So too has the increased number of Select Committees. When I joined the House in 1978, there were only two Select Committees—those on science and technology and on Europe. There are now at least three permanent Select Committees—the Science and Technology Committee, the European Union Committee and the Economic Affairs Committee. Then there is the Constitution Committee, and from time to time other ad hoc Select Committees are set up to deal with specific issues of great importance.
	That adds up to a much increased workload for the House. It cannot be spread over two and a half days and will not be. It will be spread over the week as it is now.
	The general debates have to be considered in the context of the changes that I have mentioned. There is now more work competing for the prime day of Wednesday. It is not beyond the ingenuity of government business managers and the usual channels, because both have to agree, for a sensible allocation of time to be worked out, both for government business and for influencing the policies of the nation through all the other ways that I have suggested.
	The House prides itself on being representative and I think that it is. All the professions, business people, people from the public sector, the voluntary sector and the charitable sector, and people involved in family affairs are represented in this House. But we are not so representative when it comes to regional representation. Again, in the consideration of reforms of this House, it was almost unanimously agreed that we need to have more regional representation.
	I suggest that it might be a good idea for the House to start by becoming more region-friendly. When that issue was considered previously and again today, the question of the convenience of Members, particularly those such as myself who come from the north of England, have been mentioned. I would suggest that it is not a matter of personal convenience, but it is a matter to better facilitate all Members of your Lordships' House, so that they can bring in their important outside interests to add to the value of our debates in that way. I do not see that that would be diminished in any way by moving Wednesdays debates to Thursdays. It would give us greater flexibility, but would not bring about any great changes.
	Attendance in this Chamber is no indication of the strength of involvement of your Lordships. Wednesday debates can be an example. On 16 March, I sat in for the whole of the first debate—apart from the last three minutes. I sat in because I thought that that debate on the future of our 16 to 18 year-olds was important, although I was not speaking. Yet, during that debate, putting aside the Front Benches, there were not more than 20 Members in the Chamber at any one time. The core was around 14 or 15 and other Members came in and out as they felt fit. It was not until the last few minutes of the debate, when other Members began coming in for the next debate, that there were more than 20 Members in the Chamber—and it was, again, probably less than 30.
	So, we cannot take that as an indication, because on that very same day, according to the records of the House, some 399 Members were present in the House at some time on some aspect of your Lordship's business. I suggest that there would be little difference if we changed to Thursdays. Indeed, if we look at the record of daily attendances, there is a pattern. On Mondays, Wednesdays and Thursdays attendances are, by and large, fairly even—although they fluctuate. Tuesday is the best day of the week for them. I suggest that that type of pattern would continue.
	I hope that Members will support my amendment, which is for the change to take place for one Session of Parliament. If it does not work, we will of course review the situation and decide what to do. So I hope that you will support my amendment. In order to do that, I must ask you to vote against the amendment in the name of the noble Lord, Lord Rodgers, because only in that way can we resolve the question before us.

Lord Denham: My Lords, before the noble Baroness sits down—do the figures that she quoted for attendance on Thursdays refer to Thursdays before the 11 o'clock sittings started? In the old days, when Thursdays started in the afternoons, we had very good attendances indeed.

Baroness Lockwood: My Lords, the figures to which I referred related to the present Session of Parliament.

Lord Denham: My Lords, I am most grateful to the noble Baroness.

Baroness Amos: My Lords, I would like to speak briefly on two of the items in the report. I will touch on the Wednesday/Thursday issue in a moment, but I would like to start by saying a little about the issue of exchanges between this House and the other place on Bills. The issue is complicated, but it is of course of the greatest importance. It affects the contents of the statute book and the capacity of Members of both Houses to foresee the consequences of their actions in what can be complex parliamentary situations in terms of procedure and difficult situations in terms of the politics.
	The report offers a formula that gives to all sides reasonable certainty. I am grateful to the Chairman of Committees and to the Clerks for their hard work in helping us to resolve this. The report rightly says that the matter must be kept under review, but let us all hope that there will be no more problems of this kind. It is encouraging that there were no such problems in the recent ping-pong on the Prevention of Terrorism Bill and the Constitutional Reform Bill. Those were hard-fought battles, but in neither case was the status of the Bill ever in doubt.
	Let me now turn to the issue of Wednesdays and Thursdays. It is of course a House matter, and I expect the debate to show that there are strongly held views on both sides of the argument in all parties and on the Cross Benches. But I have to say that I am in favour of an experiment with debates on Thursdays because the issue has been in the air for years. It was voted on in 1999 and again in 2001, when the proposal to change was defeated by just two votes. I do not believe that the issue will be resolved until we submit it to an experiment.
	In this case, the experiment would run from the start of the next Session—whenever that may be—until the end of June 2006, when general debates will come to an end as usual. We will have from then until the end of the Session to review the experiment and to decide whether to make the change permanent. As the Lord Chairman has said, in the absence of a positive decision to make the change permanent, we will revert to the status quo.
	I point to one consequence of change if the House were so to agree. If we can consider Bills only on Mondays, Tuesdays and Wednesdays, it will be necessary sometimes to ask the House to consider the same Bill two days running, which is something that at present we try to avoid. The days in question now finish by around 10 p.m. If change occurs, there may be a case for moving party and group meetings from Thursdays to Wednesdays. That of course is a matter for each party or group. If it would help for the Forthcoming Business notice to come out earlier in the week, the Chief Whip has assured me that he will do his best.
	I said at the outset that it is a House matter. That is the case, but it is my firm view that, without an experiment, the House will continue to come back to the matter time and time again.

Lord Gordon of Strathblane: My Lords, I rise to support the amendment moved by my noble friend Lady Lockwood. As the noble Lord, Lord Rodgers, mentioned, I unsuccessfully deployed the "proportionate inconvenience" argument in the debate back in 1999. I think that the noble Lord dealt with that issue very fairly, and I do not quarrel with him. However, I do want to take up one issue with him. I hope that, on reconsideration, he will agree that his description of a two-and-a-half day week is pretty wide of the mark. I understood that child labour and things such as that were abolished in the last century. I count coming to this place at 2.30 p.m. and working until 10 p.m. as a day's work, particularly if there is no meal break.
	There is another point on which I quarrel with the noble Lord, Lord Rodgers. It is not a question of the inconvenience of travelling up and down twice in one week; it is the physical impossibility of it. If we are here until 10 o'clock on a Tuesday, one tries to travel home on a Wednesday and gulp a bit of fresh air but then has to come straight back again to be here for Thursday morning. That is nonsensical.
	It is important to remember that we are not talking about any change to the apportionment of time; we are simply talking about the distribution of that time. If the noble Lord, Lord Rodgers, is correct and effectively we have a three-day legislative week, then I am in favour of discharging that obligation in three days and not spreading it over four, which is inefficient. Let us also remember, as I think the noble Lord acknowledged, that for a large part of the year we are not talking about three days; we are talking about four days because legislation comes in on a Wednesday as well.
	However, my principal argument concerns the good of this House. What do we value about the House of Lords? I think we are all united in valuing it very much. One thing we value is obviously the degree of experience and wisdom in the House. That experience comes with age as well as being current practical experience. Another is the independence of mind, which I imagine government Whips and all party Whips rue at times. Another is the fact that we are virtually immune from pressure by party managers. People exercise their own judgment. My own feeling is that the fact that we are non-elected plays a part in that, but I have no wish to open up that particular debate at the moment.
	I am sure I am not alone in this House in marvelling at the degree of current expertise, no matter how recondite the subject or the question raised. I sit in admiration as one noble Lord after another modestly declares an interest, which simultaneously shows real current knowledge of the subject under discussion. I am sure we all agree that current knowledge is what we are talking about, because the shelf-life of knowledge nowadays is very short indeed.
	If we are to have Peers—not everyone in the House but at least a sufficient spattering—with current knowledge to make sense in debates, how will that come about if the knowledge is acquired outside London and they are spending at least four days in London? I am not trying to make any kind of anti-London point. London has a rich treasury of resources and experience in the people who live and work here, but surely this House does not want to fish exclusively in that pond.
	If some noble Lords, whom we are proud to quote in debates, were combining their work here with work in, for example, a teaching hospital in the north of England, then frankly they could not attend the House as often as, for example, the noble Lord, Lord Winston, manages to do, coming from London. There will be a real loss to the House if we are not able to attract people who come from outside the M25 and who have practical current experience. I stress that I am not in any way underrating London.
	It is also important for Peers in an unsalaried House to continue to earn a living. There is nothing ignoble about that. But let us leave the economics out of the debate and just talk about the experience angle. It is vitally important that we continue to have access to current experience, and the current programme of business in the House means that that experience can be acquired only within the M25. I think that that is bad for the House and bad for the country.
	The general debate days are extremely important and I value them. Some years ago, I was fortunate enough to secure a debate on the Communications Bill, which I think played a part in bringing about some pre-legislative scrutiny of the Bill. I particularly enjoy, for example, the almost annual fixture of the noble Lord, Lord Tombs, making a speech about electricity generation and pointing out that it is the same speech as he made the previous year but that the Government have done nothing in the intervening year. I have no doubt that we shall hear exactly the same speech next time.
	So Wednesday debate days are great and highly enjoyable. Sometimes, frankly, for Back-Benchers they are far more enjoyable than scrutinising legislation. But, to be honest, they are not as important as our legislative work. That, as I think we all recognise in this House, has become increasingly true over recent years when the burden of scrutiny has fallen increasingly on this House rather than the other place. Therefore, I commend the amendment in the name of the noble Baroness, Lady Lockwood.

Lord Williamson of Horton: My Lords, although the main point of interest today is obviously the question of the Wednesday/Thursday debate, I want, first, to say a word about the inclusion in the report of the important step forward on exchanges between the Houses on public Bills. That really should not be underrated. The report clarified that packages from the Commons should be considered only if they are confined to single or closely related issues. It thus puts a block on a possible slippery slope to inappropriate packaging of issues, which would otherwise risk diminishing the powers of this House. That point should not be underrated; it is important and I very much commend it to the House.
	Like the noble Baroness the Leader of the House, I want to congratulate the Clerk of the Parliaments and his colleagues, who discussed this rather difficult issue with their colleagues in the other place. We saw the advantage of that during debate on the Prevention of Terrorism Bill, when we were able to go on for what I describe as "a good long time" expressing our view without ditching the Bill. I think that that was an important step forward and it is a real improvement in the protection of our powers in this House.
	I now turn to the question of a possible exchange of business between Wednesdays and Thursdays, which has been raised by the committee and in the Motions today. It is clearly an issue for individual Members. There are differences of view within the party-political groups and—surprisingly enough!—within the Cross-Bench group. This was shown by our earlier discussion and votes, including the last very narrow majority, and it is shown by the way in which the Procedure Committee did not attempt to reach an agreed view but passed the issue to the House. I speak as an individual and I want to comment briefly.
	First, we have to consider the effect on the business of the House of a change, which would no doubt be experimental and subject to review after a period of time. I express the view that, if we make the change and return to the matter later, perhaps we should also consider an issue which is not on the Order Paper today—that is, the possibility of a debate day on a Monday. I do not want to press that point but, if we are to review the subject later, we might consider it.
	Changing the business from one day to the other would not in itself reduce the time available for the House's principal functions of scrutiny of legislation and debate on issues of importance to Parliament and the public. It might even increase it if there were no longer a lunch break on a Thursday. But we should be realistic. We should foresee, as some already have done, that the attendance of Members in the House on a Thursday as a debate day would be likely to be lower than it presently is on a Wednesday as a debate day. I believe that that would be the case.
	So far as Cross-Benchers are concerned, the difference would probably be slight as we are rather good attenders at debates. We probably number 18 or the 20 referred to; I do not count them but often there are that many present. In the last Session, 23 per cent of those participating in debates were Cross-Benchers, and so we are fairly steady attenders. I do not think that that would change too much but overall there would be a change.
	Secondly, we have to keep in mind that many Members of the House have no salary here—poor things—and they have to work for a living, or they hold a wide range of posts, often honorary but time-consuming, in many non-governmental organisations or charities. Some of us also attach a great deal of importance to our responsibilities in parts of the UK far from Westminster—in my case, in the "territorial extremity", as it has been referred to and which I love dearly. The territorial extremity should be given full attention, and those of us from those parts do not like to become too London-based. The change of day would be welcome to some of those Members.
	Finally, we need to take account of practical consequences. The most evident would be timing of the meetings of the political party groups and of the Cross-Benchers. If there were a change, it would probably be necessary to change the political and Cross-Bench meetings to Wednesday and it would be necessary to have available a day earlier the Forthcoming Business. I do not know whether that is possible, but it would be difficult to organise those meetings without it.
	Those seem to me to be the considerations on which we should individually vote today. Like other noble Lords, I shall vote as an individual on this matter.

Lord McNally: My Lords, it has become abundantly clear that this is a matter of individual opinion. I am pleased to hear about the freedom on the Labour Benches. It was not quite so clear at four o'clock on a Friday morning a short time ago, but there we go.

Noble Lords: Oh!

Lord McNally: You independent-minded lot! My Lords, we are looking for some independent minds today. As the noble Lord, Lord Rodgers, rightly said, this is not just a matter of moving business to another day. There are much wider issues to be thought about. Ever since I have been in this place, I have been naturally suspicious of arguments for tidiness and good order in relation to how Parliament works.
	The family-friendly arguments do not carry much weight with me. I have looked at what has happened in another place and, like Nye Bevan, I ask why we should look into a crystal ball when we can read the open book. Many of the family-friendly reforms in the other place have taken away a lot of its life, vibrancy and effectiveness. I was told that MPs do not now like three-line Whips on Wednesdays because they ruin two weekends, but I am not sure that I would go as far as that. However, if one goes to the other place and looks at the empty rooms and the echoing Chamber then one must worry about the operation of—I shall be generous to the noble Baroness, Lady Lockwood—a three-day week. But that is what we are proposing.
	Parliament should be a little bit messy and unpredictable. Ministers should not be able to rely on certainty. Too much certainty breeds complacency and puts too much power in the hands of an already powerful Executive. This House won great plaudits for its 36-hour Thursday.
	If we put three days of Government business in sequence, it puts a strain on the resources of Opposition parties to marshal their teams and do business. The Wednesday breather is also an opportunity to regroup and scrutinise.
	I know the attractiveness of the neatness of this arrangement for the out-of-towners, but we would be sacrificing effectiveness for convenience. We are an anachronism, but an anachronism that works. We work in both senses of the word. We work very hard—we are the most hard working advisory and revising Chamber in the world—and, as we have shown in recent weeks, we are, if not the only, certainly the most effective check and balance to the over-mighty Executive that apparently still exists in our constitution.
	The noble Baroness, Lady Lockwood, offers the House neatness, good order and long weekends. The noble Lord, Lord Rodgers, offers a lifeline to the awkward squad on all Benches. I believe that this move would weaken the authority of the House and undermine our reputation. If the amendment of the noble Lord, Lord Rodgers, is defeated, I would rather have the opportunity to consider the idea of the noble Lord, Lord Williamson, of a general debate on Monday. It has better merit than the idea put forward by the noble Baroness, Lady Lockwood.
	Let me put something into the minds of the serried ranks opposite. John Major said, towards the end of the Conservatives' 17 years in power that, one day, a leader of the Conservative Party would have the duty of taking his party back into opposition. That applied to the Conservative Party; it will apply to the Labour Party. In making these decisions, noble Lords should make them on behalf of an effective Parliament, not for the convenience of the Whips. We shall see where they go.
	I have accepted various changes in this House, such as referrals to Grand Committees, but if we want to come to this House to do the job of a parliamentarian, not merely that of a party supporter, we must guard extremely jealously the capacity to cause inconvenience. Our present structure does that. Reform as proposed by the noble Baroness, Lady Lockwood, would be to the convenience of the Executive and to the weakening of this House.

Lord Lipsey: My Lords, I do not think any noble Lord on these Benches will be surprised that the main opposition to the proposal tabled by my noble friend Lady Lockwood comes from the Liberal Democrat Benches. They have put her suggestion down to its convenience to government, but they are not likely to have any experience of that and we would not expect that argument to weigh much with them. As a matter of fact, it does not weigh much with me. I find it hard to see why the convenience of government is greatly increased. As my noble friend Lady Lockwood said, this House has, over time, become hugely more effective in scrutinising the Executive. It is extraordinary to believe for a moment that a switch from Wednesday to Thursday would affect that fundamental reality. It would not affect it in the least.
	I am moved to rise by the remark of the noble Lord, Lord Rodgers, about long, long weekends. I am proud to say that the noble Lord has been a friend of mine for a very long time. But those of us who have the pleasure of having homes in London and who can go home to our family at night should be a little chary of prescribing a more bitter mechanism and a more bitter lifestyle to those who always have to go to some not very pleasant little hotel on a Wednesday night. That does not improve the role that they can play in this House and it is not something that we should dismiss lightly.
	On the noble Lord's phrase, "the long, long weekend", there are Members of this House for whom that is true, particularly the older Members. I do not refer to my noble friend Lady Lockwood, who is a mere stripling in this place, as an older Member—

Baroness Lockwood: My Lords, I am probably one of the oldest Members of the House, but, unlike what my noble friend was suggesting, my weekends are very busy doing things in Yorkshire which enable me to contribute to this House.

Lord Lipsey: My Lords, I quite agree with my noble friend as what she said goes absolutely to my point. I thought that my noble friend could not be much above my age of 56, but it appears that I have misassessed that.
	Like most Members of this House, I have a large portfolio of jobs. Some of them are paid, because this House does not provide an income sufficient to support someone with a family who does not have any resources of his own, and some are unpaid. I do not have a long, long weekend. I devote parts of the weekend directly to the affairs of this House and parts to affairs outside this House that bear on my work here and to the contribution that I hope to make to its debates.
	I shall give an example that might appeal to the noble Lord, Lord Rodgers, because he is a distinguished former chairman of the Advertising Standards Authority. It has a two-day "away day" each year. I cannot attend that because I do not have two successive days for an away day at the times when it is possible for that authority to meet. I cannot devote two days solely to important meetings outside the House. It is not a matter of my personal convenience but of discharging and balancing the extraordinarily difficult, conflicting pressures on time. I do not think that there is anything ignoble in taking those into account in making the decision today. I very much hope that the House will vote to make the change.

Lord Wallace of Saltaire: My Lords, we are voting from a personal not a party standing. I strongly support the amendment moved by the noble Baroness, Lady Lockwood. I support it for two strong reasons: first, when I was recruited to the House, I was assured that it was a part-time House. It remains a part-time House, and I have continued to earn a salary and—thank goodness—a pension, to which I shall shortly be entitled—since I entered it. Secondly, it is very important that this place should be regionally diverse. To be regionally diverse, we have to ensure that it is possible for new Members—we will recruit new members in the next two or three years—to continue to work and live with their families outside London as well as contributing to the House.
	I was extremely lucky when I was appointed to the House. Three months earlier, I had been offered a job at a university in London—10 minutes from the House. It has therefore been possible for 10 years to continue teaching my students, sometimes seeing them here and occasionally—I hope no one has noticed—marking essays on the Bench; and thus to combine the two. If I had still been at the University of Manchester, where I was first employed, or perhaps at the University of Hull, which has contributed a remarkably large number of people to the House, it would be much more difficult.
	I realised as soon as I came here that some of the best Members of the House had been or remained members of county councils—in Lancashire, North Yorkshire, as well as in Suffolk and Sussex. It is important that we continue to attract such people, who bring a range of political experience that enriches what we do.
	There is a danger of a romantic view about the Wednesday debates. I took part on the second debate on 16 March. Throughout that debate, there were two people on the Conservative Benches: a Front-Bench spokesman and a Whip. It was a Wednesday. Would there have been more if it had been a Thursday? There certainly could not have been fewer.
	The current distribution of Members of the House is not as diverse as it might be. I have spent some time over the past two or three days trying to organise visits for Members to Yorkshire, the north-west and the north-east during what have been kindly described as the "county council elections" on 5 May. I have been struck by the number of times that I have had to ask people to travel up from the south-east to the north, rather than being able to draw on people who come from the area. That is not the people who live outside London. I was accused by a member of my own group in one of our early discussions of belonging to the Tuscan Yorkshire tendency. Many of us have families who work some distance away. We also like to spend a little time with them at weekends.
	One Member who stayed until Friday evening during the great confrontation between the two Houses remarked to me in the course of rearranging her life that it took her seven and a half hours to travel back from the House to her home in Scotland and that the decision therefore to stay on from a Thursday afternoon to a Friday evening was not one that she wished to take lightly. Nevertheless, I want such people to remain active Members of the House and to be attracted to the House. For those reasons, I shall support the amendment moved by the noble Baroness, Lady Lockwood.

Lord Graham of Edmonton: My Lords, my contribution will be brief, but it is based on Membership of the House for more than 20 years.
	In 1983, when I came to the House, I can recall that the decision of the business managers was not to meet on a Monday. We did not meet on Monday because that was the weight of business. Too often, Members in all parts of the House are hidebound either by protocol or heritage in such matters. Let us examine our own convenience and contribution.
	I am enormously grateful to the noble Lord, Lord Rodgers, for the admirable way in which he pitched the arguments that he advanced. I see no virtue in sticking to Wednesday for debate day for the sake of sticking to it. I decided to come in last Wednesday. I sat in for the two debates—not for all of them, but I popped in—and I can tell the noble Lord, Lord Strathclyde, who has been a good friend of mine over the years, that I sat here and looked at the completely empty Benches on that side of the House in the second debate, which was on a modest topic called Iraq. There was only one Member, a Back-Bencher. That was the noble Lord, Lord Waddington. He is often in his place. He was here earlier; I am sorry he is not here now. I should like to pay tribute to him. He came in and took part.
	There is far too much romantic thought about the value and importance of debates in this House. There are good debates, there are passionate debates and there are well attended debates, but we should not forget that there are debates like those held last Wednesday. I do not make a party point; I have been the only person on my side on subjects like housing, when I have bemoaned the fact that the interest on our Benches in housing seemed to have declined over the years. We try to support our own side. We do that very well, but I welcome the opportunity for change.
	The noble Lord, Lord Denham, who is still in his place, drew attention to the change of a Thursday and how that change from 2.30 pm to 11 am could very well affect attendance. Of course it could, but I suggest that there are some people who would not take part in a debate on a Wednesday but might well take part in a debate on a Thursday because the House starts at 11 o'clock. We just do not know. The Motion asks to change an arrangement for our convenience. The noble Lord, Lord Rodgers, said that it was likely that the majority of Members of the House would find it more convenient to switch from a Wednesday to a Thursday. That remains to be seen.
	Reference has been made to the nature of the House. Of course, it continues to be a part-time House, more and more doing a full-time job. For the past few years—possibly for a few years more—we have been in the middle of effecting great change. It is not just since 1999 that we have considered a change. In all my time in the House, the question of whether the debate day should be a Wednesday or a Thursday has been talked about. I am conscious of the fact that we need to make a decision.
	The noble Lord, Lord McNally, chided those on this side of the House who may vote for the amendment moved by the noble Baroness, Lady Lockwood, and said that we should remember that governments change. Of course they do—oh ye of little faith on both the Liberal Benches and the Conservative Benches. There may be a feeling that there is some benefit on the margin to the government of the day from the change, but I am prepared to accept of course that this Government will one day not be the government and that it could very well be the Conservatives or the Liberal Democrats—but not just yet.
	I am all for change, provided it is done cautiously and in the direction in which I want to go. If there is no change, I shall still enjoy coming here and participating. If there is a change, it will make no difference to me. Of course, there are consequences for party meetings and so on. In the Labour Party—as those many Members on the other side who once were Members of the Labour Party will recall—the PLP used to meet on a Wednesday morning. Now it meets on a Monday evening. That was altered because of changes that were taking place. It has a bearing on when business is available. As a member of the usual channels, I know that such changes cannot be imposed; they must be made gradually.
	I say to noble Lords on the other side of the House, whom I appreciate as colleagues, that we are about our own convenience. There is far too much romance in thinking that Wednesday debates per se are great and good; there are good and bad aspects. I support the change proposed by the noble Baroness, Lady Lockwood.

Lord Strathclyde: My Lords, we have already been discussing this subject for an hour. It is Maundy Thursday, and there remains a lot of very serious and important business, including the Mental Capacity Bill. Perhaps I could say a few words, as I am the only Conservative, apart from my noble friend Lord Denham, to have spoken.
	Like the noble Lord, Lord Williamson, I shall start by commenting on the rest of the report, particularly one small point of detail. In paragraph 15(c) the noble Lord the Chairman of Committees talks about committee reports that are "ripe for debate". What does he mean by that?
	The most important part of the report is the provisions on packaging, which the noble Lord, Lord Williamson, and the noble Baroness the Leader of the House mentioned. It is not a subject that I approach with any enthusiasm, as it is extremely complicated and affects us only very rarely. But when it affects us, it is crucial to the relationship between the two Houses and to the power in this House. I am sure that we have all read the comments of Mr Hain in another place about the need to restrain the powers of this House. I have read too much loose spin about curbing and punishing the House for the stand that we took in defence of our liberties on the Prevention of Terrorism Bill.
	Against that background, the increasing use by another place of packaging—the linking of generally unconnected amendments—which was done by mistake on the Planning and Compulsory Purchase Act and quite deliberately on the Hunting Act, to avoid having to offer amendments in lieu to a proposition put forward by your Lordships' House, could only be viewed with the gravest suspicion. One of the few points of resistance left to your Lordships' House is the ability to insist on a Lords amendment. Take that away and no government need ever listen to this House again. Whatever we do we must retain that power.
	The negotiations between the officers of the two Houses and Parliamentary Counsel, so ably conducted on our behalf by the Clerk of the Parliaments, have clearly established that this House need not be bound by packaging, and that if two unlinked amendments are packaged in the House of Commons and sent back to us as an attempt to escape double insistence, that will not be effective. This House may still consider that double insistence has occurred and refuse further to consider a Bill. I very much welcome that position. It remains to be seen how long it will last and whether we can avoid double insistence, if that is required.
	That is why an experimental period is desirable. There was something to be said for the former clarity with which an argument could be brought down to its essentials quickly and a solution therefore inevitably found. With that caveat, I commend these provisions to your Lordships' House.
	Talking of experiments, in the past hour we have been debating another experiment regarding Wednesdays and Thursdays. I am sorry that we are debating the matter today, Maundy Thursday, when inevitably the House is not as full as it should be. It is an important House matter. I echo what the noble Baroness the Leader of the House said: there is a genuinely free vote. It is for Members of this House to decide, and there is no greater power for Members than to decide how we deal with our business daily. I expect that Conservative Peers will vote either way; they must do so, because it is their right.
	I was glad that the noble Lord, Lord Graham of Edmonton, reminded us, almost incredulously, that when my noble friend Lord Denham was Chief Whip, for months of the year, at the start of the parliamentary Session, we did not meet on Mondays at all—partly because of the weight of business and partly because of how we dispatched the business that we had. It was a very civilised time, if I may say so to my noble friend.

Lord Graham of Edmonton: My Lords, those were the days.

Lord Strathclyde: My Lords, we might make them come back again. It shows that change does occur.
	The second tremendous change that has taken place in the last couple of years is that the House sits at 11 o'clock on Thursdays. The noble Lord, Lord Gordon of Strathblane, made a powerful and persuasive point about the change. I join those who have said that there does not seem to be an advantage to government in making this change, and I cannot see a great disadvantage to the opposition in making the change. In other words, the argument that somehow the House is hugely strengthened by having the debating day on a Wednesday rather than a Thursday is relatively arcane.

Lord Phillips of Sudbury: My Lords, I am most grateful to the noble Lord for giving way. Does he not think that shifting the debate day to the end of the week will devalue it even further?

Lord Strathclyde: My Lords, my point is that I do not think that it is hugely devalued. I can at least construct an argument that, given that our Wednesday debates clash with Prime Minister's Question Time, what we do on Wednesday afternoons is not reported at all. There may be an argument that moving the debates to Thursday may make them more attractive to journalists and other commentators, who might wish to come in to see noble Lords in action at prime time. One of the extraordinary features of the newspaper industry is that it is one of the few in which deadlines have come forwards rather than backwards. It is increasingly difficult to get items into newspapers later in the day. So there may well be an advantage in having debates on a Thursday.
	The second advantage relates to Committees of your Lordships' House, as regards which there is always a certain amount of stress finding the right time. After the five-hour debating time on a Thursday there will be a good prime-time slot late in the afternoon for such debates, Unstarred Questions and so on.
	There are also disadvantages, such as consecutive days for Committee and Report stages. I accept the noble Baroness's assurance that the usual channels will do everything that they can to avoid that. But the House should be aware that there is at least a possibility of the House sitting on consecutive days at important stages of Bills.

Lord Hunt of Kings Heath: My Lords, I accept that point, but does the noble Lord not agree that the experience of the House when we sit for four days to do government business towards the latter end of each Session shows that in general the usual channels manage to make very sensible arrangements?

Lord Strathclyde: My Lords, I agree with the noble Lord, and I see no reason why those arrangements should not continue. I welcome the words of the noble Baroness the Leader of the House on that.
	Broadly speaking, therefore, I think that this is an experiment worth trying. We have had experiments in the past that have not worked and we have been able to go back. I see no reason why, in the next Session of Parliament, we should not be able to reverse this decision if it is seen not to serve the interests, not just of ourselves, but also of the House. I yield to no one in my admiration of the noble Lord, Lord McNally, as a fierce parliamentarian, but there are a few of us, on all sides, who wish to protect the importance of this House.
	Nobody can deny that this is a hardworking House. It is recognised that people who sign up to become Members of this House sign up to giving up a great deal of their time and energy. In the words of the noble Lord, Lord McNally, if we agree to the amendment tabled by the noble Baroness, Lady Lockwood, it will not stop our ability to make Parliament, particularly this House, messy and unpredictable. Therefore, I shall not support the noble Lord, Lord Rodgers of Quarry Bank, but I will support the noble Baroness, Lady Lockwood.

Lord Brabazon of Tara: My Lords, I hope that noble Lords might feel that lunchtime approaches and we should bring this debate to an end, not least because there is very important business, including Statements, to follow. As I said in my opening remarks, the Procedure Committee was not able to make a recommendation on the principal issue before us today. Therefore, it is not for me now to attempt to reply to the very good-humoured debate put forward by noble Lords who are for or against the changes.
	Perhaps unsurprisingly, very few noble Lords raised any other matters that were in the report. But I have to refer to the noble Baroness the Leader of the House and to the noble Lords, Lord Williamson of Horton and Lord Strathclyde, who raised an extremely important matter; that is, packaging and double insistence.

Lord McNally: My Lords, because I was trying to be brief, I omitted to say that these Benches warmly supported those initiatives. We are particularly grateful to the Clerk of the Parliaments for facilitating that agreement.

Lord Brabazon of Tara: My Lords, I am grateful to the noble Lord, Lord McNally. I should like to extend those words of thanks on behalf of all those involved. This is an extremely important matter, and those efforts have made the proceedings very much easier for me and my fellow Deputy Chairmen. I think that they have also made it very much easier for the House as a whole to understand what was going on.
	The noble Lord, Lord Strathclyde, asked when committee reports were "ripe for debate". The report is now included when the committee in question instructs that it should be, because the committee now wishes to debate the report. That may be as soon as the government response has been received, or it may be after the committee has taken further evidence or undertaken further consideration of the subject. The answer is that it is up to the chairman and the committee to make the decision.
	The noble Lord, Lord Williamson of Horton, asked about the possibility of a further change in the debating day, to Monday. If he will excuse me, I do not intend to respond to that today. Let us deal with one thing at a time. So, with that, I leave it to the House to decide what it wishes to do with the amendment moved by the noble Lord, Lord Rodgers.

Lord Rodgers of Quarry Bank: My Lords, perhaps I should simply put it on the record that I caught the 2.35 train from Euston to Manchester yesterday and returned at 8.15 from Manchester Piccadilly, and I have survived. I say that because I am quite familiar with what goes on beyond Watford.
	We have had a good debate and all of the issues have been plainly set out. I shall do no more than take the necessary procedural steps by asking to test the opinion of the House.

On Question, Whether the said amendment shall be agreed to?
	Their Lordships divided: Contents, 98; Not-Contents, 135.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Lockwood: rose to move, as an amendment to the Motion in the name of the Chairman of Committees, at end to insert "but with the omission of paragraph 20(b)".

Baroness Lockwood: I am very grateful for all the support given to me during the course of the debate. I shall move formally the amendment standing in my name. I beg to move.
	Moved, as an amendment to the Motion in the name of the Chairman of Committees, at end to insert "but with the omission of paragraph 20(b)".—(Baroness Lockwood.)

On Question, amendment agreed to.
	Motion, as amended, agreed to.

Iraq: Legality of Armed Force

Baroness Symons of Vernham Dean: My Lords, with the leave of the House, I shall now repeat a Statement being made in another place by my right honourable friend the Foreign Secretary in response to a Private Notice Question on the legal questions around Iraq. The Statement is as follows:
	"Let me take the two parts of the Question in turn. First, the circumstances surrounding Ms Wilmshurst's letter to the Foreign and Commonwealth Office legal adviser of 18 March 2003. Elizabeth Wilmshurst was one of the deputy legal advisers at the Foreign and Commonwealth Office. As is now well known, she submitted her resignation on 18 March 2003 because she disagreed,
	"that it [was] lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678".
	Given that difference of views, her resignation was an honourable course to take and in accordance with the Civil Service Code.
	"The Foreign and Commonwealth Office received a number of requests for the text of Ms Wilmshurst's letter under the Freedom of Information Act after it came into force on 1 January this year. These requests were initially refused, mainly because much of the content of Ms Wilmshurst's letter contained personal data, the disclosure of which would have contravened the first data protection principle under Section 40 of the Act.
	"Following the publication in the Guardian on 23 February of a number of quotations from the letter, we took the view that disclosure of this information would no longer contravene the first data protection principle. We therefore disclosed the letter yesterday. Two sentences were, however, omitted by the Foreign and Commonwealth Office from the document because their content concerned the provision of legal advice in relation to the use of force against Iraq. Regardless of whether these references were accurate, this information was covered by exemptions in the Act which apply to confidential legal advice (Section 42(1)), the formulation or development of government policy (Section 35(1)(a)), and some was also covered by exemptions for ministerial communications (Section 35(1)(b)) and law officers' advice (Section 35(1)(c)).
	"It was entirely proper for the Government to withhold information under these provisions of the Act. Indeed, when the Freedom of Information Bill was being debated in the House, I can recall no suggestion from any side that the Government's legal advice should not be exempt from disclosure.
	"Let me now turn to the second aspect of the question, the Attorney-General's opinion on the legality of military action in Iraq. This whole question is covered extensively in the report of the noble Lord, Lord Butler, Intelligence on Weapons of Mass Destruction at paragraphs 366–387, and I commend those paragraphs to the House. Ms Wilmshurst gave evidence to the Butler inquiry, and the substance of her position, then as now, is covered in paragraph 376 of the report.
	"In the light of Saddam Hussein's failure to comply with his obligations set out in UNSCR 1441 of November 2002, the United Kingdom, the United States and Spain tabled in February 2003 a further draft resolution in the UN Security Council posing tough but attainable tests for Iraq. This gave Saddam Hussein the final opportunity to comply, which was offered by Resolution 1441.
	"I attended a series of Ministerial Security Council meetings in the early months of 2003, the last on 7 March 2003. As I said in my speech to the Security Council on that day, not a single member of the Security Council disputed that Saddam was in material breach of his obligations under SCR 1441 and the preceding resolutions. He had not fully complied with the obligations laid out in SCR 1441 and previous resolutions.
	"The Attorney-General made clear in his Written Answer of 17 March 2003 his genuinely and independently-held view that military action in Iraq was lawful on the basis of Saddam's breach of the existing UN resolutions. As he said then, authority to use force against Iraq derived from the combined effect of UN Resolutions 678, 687 and 1441. A large majority in this House supported on 18 March 2003 the Government's Motion before the House to take military action against Iraq".
	My Lords, that concludes the Statement.

Lord Howell of Guildford: My Lords, I am grateful to the Minister for repeating the Statement made by the Foreign Secretary in the other place. It strikes me as slightly ironic that it was the Freedom of Information Act and the provisions under Section 40 that apparently led to the reluctant revealing of the letter and then to the revealing later in the day of the paragraph in the letter. It raises a question in my slightly sceptical mind as to whether the Freedom of Information Act will lead to more freedom of information in the long run. It does not seem to have had a very good start.
	I am quite surprised that the noble and learned Lord the Attorney-General is not in his place. He is a Member of your Lordships' House and this matter directly concerns him. So, whoever in government decided to make the Statement, it would have been reasonable to expect his attendance here. Obviously it was not considered reasonable on the government Benches.
	The fact that now emerges—I do not think the Government deny this—is that the missing paragraph shows very clearly that the Attorney-General changed his assessment—or his judgment or his view—in the weeks before he reached his final view. Reference has been made to the Butler report but I can see nothing in that report—neither in paragraph 376 or anywhere else—to indicate that he changed his mind or that there was an evolution of views, to put it kindly, which led to his final prognostication.
	Faced with the very serious matter of going to war, it would have been better for the Government if the noble and learned Lord the Attorney-General had put all his assessments before the House. I know that it was private legal advice to the Government and that there is a custom—which I understand—of keeping private such advice, but there have been several precedents for bringing this kind of advice out into the open.
	The Minister and I have argued slightly as to whether "several" means "numerous", as I perhaps rashly claimed, or whether it just means "several", but on three or four occasions in the past century or so an Attorney-General has felt it right to present all his advice to both Houses and to the public. That would have helped in this case, particularly as one of the main planks in the argument of the justification for war—namely, that there were weapons of mass destruction—turned out to be non-existent. There were no weapons of mass destruction, so it was therefore all the more important to set out the views of the Attorney-General on why he thought the war was justified.
	Ultimately, when we have to go to war to try to make this a more stable and better world, as was the aim, one has to ask whether the Government, the Attorney-General and the Minister really believe that the United Nations and its resolutions are the sole source of international legitimacy on which everything else depends. Do they believe that? We managed in Kosovo without UN resolutions and there have been other wars—and no one welcomes them—when it became necessary to take action, through a coalition of democracies, and it was not possible to wait for the full procedures of the UN to be completed.
	Was that the reason the Attorney-General changed his mind? Did he realise, first, that it would be good to obtain UN cover; and, secondly, that the second resolution was not forthcoming from the UN? There has to be more frankness and candour on these matters than there has been so far.
	War is based on trust. I want to live in a society where we trust our government, of whatever colour and party, but that commodity seems in very short supply in this case. The time has come for a good deal clearer exposition of why we are involved and what we are trying to achieve, much of which I applaud. We must have clear, firm and honest reasons.

Lord Thomas of Gresford: My Lords, I, too, am grateful to the Minister for repeating the Statement. Does she agree that the legality of the war is an important—if not vital—issue? Does she further agree that if it was a crime of aggression, as Ms Wilmshurst contended, it affects not only the political leaders but also the military leaders, and that was the reason for the concern of the Chief of the Defence Staff prior to the invasion to ensure that he was acting legally? After all, Field Marshal Keitel, the head of the German forces, was executed at Nuremberg.
	Does the noble Baroness agree that we can exclude as justification for the invasion the issues of self-defence, pre-emptive strike, humanitarian intervention and regime change? The Attorney-General has never argued that those were the justifications. He has always argued that the invasion was justified in the enforcement of the UN resolutions of 1990 and 1991—namely, those referred to by the noble Baroness in the Statement—Resolutions 678 and 687.
	This issue was discussed in a memorandum by Professor Christopher Greenwood, QC, who is often thought to be the only academic to support the Government in this matter. He argued that Resolution 678 could still authorise military action in a memorandum that was placed in evidence by the Select Committee on Foreign Affairs. His opinion was dated 24 October 2002. He said:
	"it is open to the Security Council to determine that Iraq continues to be in breach of the ceasefire conditions in Resolution 687 and that that breach involves a threat to international peace and security which peaceful means have failed to resolve".
	But the machinery that he referred to in his opinion was that although it might not necessarily require a Security Council resolution, it could be done by means of a presidential statement—that is, the President of the United Nations—which would require a consensus in the Security Council.
	He continued:
	"Moreover, a resolution stipulating that Iraq must take certain steps by a prescribed date could (depending on its wording) mean that the Council was determining that failure by Iraq to take such steps was a breach threatening international peace and security".
	It was for that reason that the Government, with the support of the United States and other governments, in the autumn of 2002 attempted to get into Resolution 1441 the trigger words which would authorise military action on behalf of the United Nations. Without such authority, the war and the invasion would be clearly illegal. But the Government failed to get those words into Resolution 1441 and it ended up as a simple warning of the serious consequences of continued violation of Iraq's obligations. It did not say, as Professor Greenwood had suggested could be a justification, that the failure by Iraq to take such steps would be a breach threatening international peace and security.
	Because it did not say that, there was a move in the spring of 2003 to obtain a second resolution to justify military action. That was withdrawn because the jury of international opinion could not be persuaded that an invasion was justified. I have taken the position on a number of occasions that it cannot be argued that when the Government and the United States Government invaded Iraq they were acting as agents for the United Nations, which had refused to give them that specific authority.
	This was in February and March. We now know from Ms Wilmshurst's letter that the view taken by the Attorney-General on 7 March was very much as I have expressed it. What was the change of circumstance between 7 March and 17 March which could possibly alter the basis of the Attorney-General's opinion? I, too, regret that the Attorney-General is not in his place to enlighten us upon this.
	The Minister referred to the Butler report, which reveals an exchange on 14 and 15 March—and therefore between 7 and 17 March—between the Attorney-General and the Prime Minister. On 14 March, two days after the Chief of the Defence Staff had asked the Attorney-General for legal advice about the legality of the war, the Attorney-General sought confirmation from the Prime Minister that,
	"it is unequivocally the Prime Minister's view that Iraq has committed further material breaches as specified in paragraph 4 of resolution 1441".
	On the following day, the Prime Minister's Private Secretary informed the Attorney-General that,
	"it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of its obligations, as in Operative Paragraph 4 of UNSCR 1441, because of false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq to co-operate fully in the implementation of the resolution".
	That being received on 15 March, the Attorney-General changed his position, clearly, and on 17 March gave the advice that the invasion was legal. But of course the machinery that Professor Greenwood had suggested was not employed. There was no return to the Security Council to ask the president to do what Professor Greenwood suggested he could do and make a presidential statement. The wording of Resolution 1441 clearly did not cover the situation that arose.
	Is it not obvious, as we have said all along, that the invasion of Iraq was illegal and that consequently, as Miss Wilmshurst advised, it was a crime of aggression, and remains so? That surely is the legal position. It has serious consequences that the Government have never taken on board.

Baroness Symons of Vernham Dean: My Lords, I thank the noble Lords, Lord Howell of Guildford and Lord Thomas of Gresford, for the way in which they have approached this issue, even if I cannot agree with a great deal of what they have said. They have said very different things, which comes as no surprise because we have been over these arguments many times already.
	The noble Lord, Lord Howell of Guildford, asked about the reluctance to publish the letter. He said that this had all stemmed from the Freedom of Information Act. Of course, it is the Freedom of Information Act which is cited in my right honourable friend's Statement as the reason for not revealing publicly information about a civil servant. I remember from my days as General Secretary of the First Division Association that, by custom and practice, such details about civil servants are not released as a matter of form in order to protect their privacy, and they have a right to be protected.
	On the second point about why the references to the Government's legal advice were not revealed, again, that is dealt with in the body of the Statement. It is because it has been custom and practice, and was part of the Freedom of Information Act, that the advice of the Law Officers to Government should not be released. It is not only a matter that Parliament has discussed and agreed without demur, it is a matter that the Law Lords and the Bar Council have accepted. If Members on any side of the House are going to start saying it would be a very good thing to reveal the advice of the Law Officers, they would be taking on not only the position that was adopted when the Conservative Party was in government but also the position of another place when it passed the legislation without demur, the Law Lords and the Bar Council. If that is the position of the Conservative Party or indeed of the Liberal Democrats, it might be very interesting to hear it.
	The noble Lord says that there are precedents. I am glad that he has stopped saying that there are numerous precedents. He was able to mention that there had been three: one was Weston, when the Conservative Party was in government; the advice given was leaked from a Cabinet meeting, so it was eventually published. The other two related to legal cases which were before the courts. But never has legal advice on an issue such as this been revealed, and no more should it be. No Government would then be able to take in confidence the sort of legal advice that all governments need. The noble Lord looks down. He is a very wise man; he is a very sensible man. He knows that it would be wrong to publish that legal advice, whatever his friends down the other end of the Corridor say.
	The noble Lord went on to ask whether that means that the United Nations is the sole source for military action or the authorisation of military action against another country. He answered his own question. No. Of course not. We knew when we went into Kosovo that we would be blocked because some members of the Security Council would not sanction that military action. The instance then cited was the overwhelming humanitarian need. I have heard some of your Lordships argue that overwhelming humanitarian need could have been argued with reference to Iraq, given that it has been revealed that there are up to 300,000 bodies in mass graves there. This is an extraordinarily difficult question, as we all know, about where the authority for military action really resides.
	The noble Lord asked what changed. On 7 March, the question of the material breach was confirmed by the Hans Blix revelations to the Security Council when he revealed the numbers of questions which the Iraqis had conspicuously failed to answer which had been put to them by his group of inspectors. It is clear that the Attorney-General gave a clear, honest and reasonable view of his advice.
	A spokesman for the Attorney-General has said that these are more of the same questions; what matters is that as recently as 1 March this year, the Attorney-General was very clear to the House of Lords that the view set out in his parliamentary Answer of 17 March 2003 was his own genuinely held independent view that military action in Iraq was lawful. We base our decisions on the advice of our British Attorney-General. That is what all governments have done; that is what this Government have done. It is no different from what has happened before.
	The question of the legality is very important. We have said so throughout, to turn to the questions raised by the noble Lord, Lord Thomas of Gresford. He asked whether I thought that the legality was important. I stood here week after week saying that I thought the legality was important. How could any decent Minister say anything else? The fact is that the noble Lord and I disagree. The noble Lord, as a lawyer, is better qualified than I—of course he is. But on the Government side are also many lawyers who believe that what was done was right.
	If the noble Lord is more interested in talking to his colleagues—

Lord Thomas of Gresford: My Lords, Miss Wilmshurst, who was the senior legal adviser in the Foreign Office, was not of that view.

Baroness Symons of Vernham Dean: My Lords, Miss Wilmshurst was one of the senior legal advisers. She held a different view, in the same way that many people in this country held a different view. She behaved honourably in the way in which she dealt with that. There is no complaint against Miss Wilmshurst. She is entitled to hold her view and she was entitled to take the action that she did. But the noble Lord knows that questions of domestic law are often very contentious. If that applies to domestic law, how much more does it apply to international law?
	In the latest report from the High-level Panel, the United Nations is still saying that it is very difficult to resolve questions of the legality of military action against different countries. In rather less febrile circumstances the other evening, we had rather a good and sensible debate on this very point. We all agreed during the course of that debate that it is important to try to clarify the mechanisms we have for deciding whether or not particular military action is justified.
	The noble Lord, Lord Thomas of Gresford, said that we failed to insert certain wording into Resolution 1441. As the noble Lord probably knows, at the same time the French were also trying to get wording into 1441 that a specific referral back to the United Nations Security Council would be necessary in order to have a legal action. That also failed. Perhaps the noble Lord should look at the full circumstances of the negotiations over 1441 rather than cherry-picking his way through how those negotiations took place.
	We always said that we wanted a second resolution—of course, we did—but we said that we wanted it not to justify the action, as the noble Lord said a moment or two ago, but that we wanted it politically. We said so at the time. It would clearly have been preferable politically, but we never said that it was necessary legally to justify the action.
	It was the view of the entire Security Council that there was a material breach of Resolution 1441 by Iraq. It was not just Britain and the United States who thought so—France thought so; Russia thought so; China thought so; and, very tellingly, Syria thought so too.
	So, the position at the end of this brief exchange is as it was at the beginning. I am not sure where the noble Lord now stands on the revelation of advice; I would be very interested to talk to him privately about that. I know where the Liberal Democrats stand because they have always stood in the same place, and, in my view, it is the wrong place.

Lord Bridges: My Lords, did the Minister happen to hear the remarks of her colleague in the other House, Mr Robin Cook, this morning on Radio 4? He commended the honesty and sincerity of Miss Wilmshurst in giving her advice and sticking to it in her resignation. Why was the matter not referred to the senior legal adviser at the Foreign Office? There could be no more important issue in international law. I am sure that, in the past at least, it was always the senior legal adviser who dealt with these matters. A melancholy precedent was set by the late Sir Eric Beckett, who advised the Conservative government of the legality of intervention in the Middle East in the 1950s. He subsequently regretted that his advice was taken and committed suicide.

Baroness Symons of Vernham Dean: My Lords, I am a little bit perplexed by what the noble Lord has said. I certainly agree with the remarks that he has reported from my right honourable friend Robin Cook, who commended the honesty of Miss Wilmshurst. But the noble Lord seems to have drawn the inference, or the conclusion, that Miss Wilmshurst was the only giver of legal advice on the matter. That is clearly not the case. A number of legal advisers were involved. Miss Wilmshurst decided that she wanted to resign as a result of her own strongly held views on the question.

Baroness Ramsay of Cartvale: My Lords, would my noble friend agree with me that there is absolutely no doubt about the clarity of the view of my noble and learned friend the Attorney-General on the legality of military action against Iraq, which was laid out in his Written Answer to me on 17 March 2003? That Answer quite clearly expressed what a lot of us had already been arguing; namely, that Resolution 678 in 1990 and Resolution 687 in 1991 and all the other Chapter 7 resolutions on Iraq that had been passed by the United Nations, culminating in Resolution 1441, justified military action. People call Resolution 1441 the first resolution; it was the 16th resolution, was it not?
	Many of us then, as I am asking her to recall, said that a second resolution was necessary politically, but was not necessary legally and that the legality of action against Iraq was based on the fact that Saddam Hussein had completely refused to comply with 16 UN resolutions under Chapter 7 that allowed the military action. Everything that has happened since then has borne out the fact, as everybody knew at the time, that Saddam Hussein had failed to comply and that those resolutions had been violated inside Iraq. Every finding of the Iraq Survey Group has shown that he did indeed stand in violation of the resolutions.

Baroness Symons of Vernham Dean: My Lords, I am in no doubt about the clarity of the advice of my noble and learned friend the Attorney-General. My noble friend Lady Ramsay referred to 17 March 2003. I remember that evening very clearly indeed. Not only did we make the Statement on the legality of the war but we had a lengthy debate on the legality of the war. As I recall, the debate was kicked off by the noble Lord, Lord Goodhart, for the Liberal Democrat Benches. It was interrupted at 8.42 p.m. by a Statement that I repeated. We then went back to the legality of the war at 9.15 p.m. My goodness, we really went into the matter in great detail and with not a little passion.
	The position has not changed since then. We said then that we thought that a further resolution—my noble friend was right to say that we always refer to it as the second resolution; I think, by then, we must have been up to the 17th resolution—would be politically desirable, but that it was not legally necessary. Our view has been entirely clear and consistent from the beginning. To their credit, the Liberal Democrats, although entirely wrong, have also been consistent and clear about where they stand. The fact is that we simply are not going to agree.

Lord Goodhart: My Lords, we know that the Attorney-General's Statement of 17 March 2003 was incomplete because it did not say that his opinion was dependent on the assurances which we know from the Butler report he was given on 15 March. Therefore, his opinion was worth only as much as those assurances. Does not the Butler report say also that the Government should have been aware by then that the intelligence on which those assurances were based was open to question?
	Are we not faced with a situation in which we have an incomplete opinion from the noble and learned Lord the Attorney-General, which is wrong in itself, and, worse than that, the giving of assurances that, as we all now know, were not justified by the facts, something which the Government, according to the Butler report, should have been able to appreciate then?

Baroness Symons of Vernham Dean: My Lords, I think that the noble Lord, Lord Goodhart, is entirely wrong. The Statement made by my noble and learned friend the Attorney-General put forward a complete view about the legality of the war—a complete view that was based on Resolutions 678, 687 and 1441. I will grant the noble Lord that the Statement was not a detailed history of how he reached that conclusion, but it was indeed a complete and unambiguous view.

Lord Mackay of Clashfern: My Lords, is it the case that the advice that the Government received from the noble and learned Lord the Attorney-General on whether, in the circumstances of there being no second resolution—I use that expression advisedly, since, as the Minister said, it is possible to number them differently—was the only opinion that he gave them on the legality of the war? That is what I understood the Cabinet Secretary to say in his evidence to the House of Commons Public Administration Select Committee.
	Does she also agree that, in the exchange of correspondence between the Attorney-General's office and the Prime Minister's office, the Attorney-General's legal secretary said that the determination of whether there was a material breach of Resolution 1441 was a matter for the Prime Minister and that, therefore, the Attorney-General sought the confirmation of the Prime Minister that that was so? That is the justification which is given in paragraph 8 of the Written Answer by the noble and learned Lord the Attorney-General to the noble Baroness, Lady Ramsay of Cartvale.
	The complete opinion that the Attorney-General gave, subject to the fact that it was dependent on the correspondence from the Prime Minister, is contained in the Written Answer that was given in this House. Anything before that was, at best, provisional and subject to whatever was happening at the time. Consequently, we have an expression of the Attorney-General's reasoning. That is the only reasoning, in the circumstances of formal legal advice, which he gave to the Government on the legality of the war.
	Is it the case also that the noble and learned Lord the Attorney-General confirmed to the Ministry of Defence on the day before he received the letter from the Prime Minister's office that, in his view, the war was legal? That was communicated to the Chief of Defence Staff, if my recollection is right, on 14 March. I have assumed—I think that it is a reasonable assumption—that the noble and learned Lord the Attorney-General had received that confirmation verbally from the Prime Minister before he received confirmation in writing on 15 March. I am asking, really, whether the Minister can say that that is an accurate statement of the position.
	I am offering no view at all on whether the Attorney-General's legal advice was right, as it is not my business to do so. I am not raising that issue, but I want to have a clear view of what exactly that advice was and whether it is not true that all of it has really already been published by the Government through the parliamentary Answer that was given to the noble Baroness, Lady Ramsay.

Baroness Symons of Vernham Dean: My Lords, in trying to answer the points that the noble and learned Lord has put, I hope that he will understand that I am not going to be tempted into speculation about the reasoning or indeed the history of how the Attorney-General came to the views he did. That would be to trespass into precisely that territory that I have already declined to discuss with the noble Lords, Lord Howell of Guildford and Lord Goodhart, for very good reasons, as I am sure that the noble and learned Lord will understand.
	I shall try to do my best with the points that the noble and learned Lord raised. He asked whether this was the only opinion put forward. If we began to discuss that question, it would be inconsistent with the view that I have just put to the noble Lord, Lord Goodhart, that that would be to discuss the genesis of the reasoning. The fact is that there is a clear statement of what the Attorney-General's view was.
	The noble and learned Lord then raised the questions around Resolution 1441 and material breach. The fact is that that resolution, which was passed unanimously, declared that there was a material breach. It was the last at that time of many mandatory United Nations Security Council resolutions that said that Iraq had failed to comply under its Chapter 7 obligations.
	The noble and learned Lord asked about who believed that there was a material breach. That view was confirmed on 7 March, when my right honourable friend the Foreign Secretary was at the Security Council in New York, when a 173-page document was produced by Hans Blix to the Security Council which put forward 29 separate issues about how Saddam Hussein had failed to comply with his obligations. So by 7 March, not only was it clear that the Security Council had already agreed that Saddam Hussein was in material breach of Resolution 1441, but that view was confirmed again on 7 March by the report that Hans Blix brought forward. I hope that that deals with those two points.

Lord Corbett of Castle Vale: My Lords, is not the truth of the matter that there are Members of your Lordships' House, down the other end and elsewhere, who blithely ignored the conclusions of five separate parliamentary and independent inquiries into every aspect of this issue, and that they keep picking away at it until they get the answer that they think they deserve?

Baroness Symons of Vernham Dean: Yes, my Lords, I do agree with that. All I would say to my noble friend is that Members of your Lordships' House are actually here—it is the other lot who are down the other end. But I agree with him that there are those who are not going to agree at any point that what happened was legal. We have had two parliamentary committees—and I think that our parliamentary committees are pretty renowned for their independence of mind. They are never reluctant to criticise the Government when it is merited, and sometimes when it is not. They have been entirely consistent. Of course, we have also had two independent reports on the matter, one from a judge and the other from a very respected former head of the Civil Service, both of whom concluded that the Government behaved with integrity throughout the whole of the engagement with Iraq.

Lord Maclennan of Rogart: My Lords, it would be convenient for the Government to regard the issue of the legality of the war as a closed book. So long as our soldiers are still engaged in this, however, it must be a continuing or immediate concern to the British people whether they are there legally or not. Has the Minister not borne in mind that by reasseverating as she has that the material breach has not been denied in the case of Saddam's observance, or failure to observe, various resolutions, which have been enumerated by the noble Baroness, Lady Ramsay of Cartvale, the issue does not turn in law on whether there was a material breach?
	The issue in the minds of the vast majority of public international lawyers, not only in this country, who have addressed the issue, is whether this Government were entitled to take the law into their own hands to seek to enforce resolutions of the Security Council. At no time has the Minister produced evidence of anything like a consensus of opinion. Whereas the action of declaring war may be one that rests under the prerogative power with the Government, Parliament was involved in this particular war on the basis of statements that were made and the fact that trust was put in the conclusions of the Attorney-General.
	It appears that there is a wider consideration than those enumerated by the right honourable gentleman the Foreign Secretary for openness about the reasoning of the Attorney-General. The mere headline conclusion is not enough when Parliament has to weigh up the question of legality. It is important for Parliament not to be misinformed by the holding back of the reasoning which brought the Attorney-General to his final and evidently perverse conclusion. I say "perverse" because it has not been supported by a single public international lawyer in this country, as my noble friend Lord Thomas of Gresford said, in analysing the sole shred of support that came from the London School of Economics professor.

Baroness Symons of Vernham Dean: My Lords, I cannot help regretting that the noble Lord, Lord Maclennan, for whom I have great respect, chooses to use terms such as "taking the law into his own hands" and "perverse conclusion". I do not believe that that sort of heated level of debate is going to get us very far. I know that the noble Lord holds those opinions very strongly; I hold my opinions very strongly, but I do not choose to use that sort of pejorative language about people who do not agree with me.
	The noble Lord said that there was not a consensus of opinion. Of course there was not. I made that point myself a moment or two ago. The very fact that there was not a consensus of opinion was what triggered the high-level panel of the UN to say that we had to find better ways in which to come to these decisions. That I hope is something that the noble Lord and I can agree on.
	The noble Lord said that this was a continuing question because of the presence of our troops in Iraq at the moment. I shall try to offer him a shred of comfort, although I believe that I shall be unlucky. There should not be any question, even in the noble Lord's mind, about the legality of those troops being there at the moment, whatever his opinion was about the initial legality, because of course they are there now under the auspices of UN Security Council Resolution 1546. I am glad to see that we can at least agree on that.

Lord Garden: My Lords, I thank the Minister for that answer to my noble friend, because what she has just said is certainly true. But I shall go back a stage to discuss the legality of the military going in, in the first place. She said that Miss Wilmshurst was only an independent voice, but her letter suggests that her views were shared by the Attorney-General before he changed them twice subsequently. But perhaps more importantly, United Nations Secretary-General Kofi Annan has said that the intervention was illegal.
	I should like reassurance on one point. Should it at some stage in future come to pass that an international court examines the legality of the operation, can the Minister reassure the House that the military command structure from the Chief of Defence Staff down, did everything possible to ensure that they had sufficient cover for legality, and that any responsibility in an international court would have to be taken by the Government and the Ministers involved at the time, rather than the military personnel who carried out the operation?

Baroness Symons of Vernham Dean: My Lords, governments must always take responsibility for the decisions taken on their watch. This Government are no different from any others. I cannot think for a moment that anyone in this Government among my right honourable and honourable friends and, indeed, Members of this House, would do anything other than shoulder responsibility that is rightly theirs. The idea that this matter would go before some kind of international court is somewhat on the fanciful side as the noble Lord and I both know very well that that is unlikely given the attitude of the United States of America to such international courts. Perhaps this will all be different some years down the road. However, at the moment it is hard to see that that is very likely.
	Nothing in Miss Wilmshurst's letter detracts from the fact that under our system what we need in order to have a legal position regarding going to war is the advice of our Law Officers. Such advice was sought and was given freely, unequivocally and independently. My noble and learned friend the Attorney-General has made that absolutely clear. Nothing in these revelations in any way undermines the clarity of his advice, nor, indeed, the fact that it was given independently.

European Council, 22–23 March

Baroness Amos: My Lords, I should like to repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
	"With permission, Mr Speaker, I shall make a Statement about the European Council that took place in Brussels on 22 and 23 March.
	"This was the fifth in a series of summits about the Lisbon agenda on economic reform in Europe. It is the British case that economic reform is not going as far or as fast as it must. Nevertheless, over the past five years, 6 million extra jobs have been created in Europe. We have opened up the telecommunications market. The gas and electricity markets have been liberalised, bringing new choice to consumers. Air travel has also been opened up, bringing cheaper air tickets. In the recent World Economic Forum study of international competitiveness, six EU states were among the 15 most competitive nations in the world. Britain is one of them and has risen a number of places in the past year.
	"So there is some progress. But, the truth is that there used to be eight EU countries in the top 15. There are still far too many unemployed in Europe; too many businesses unable to compete as they should be able to. So that is the EU's challenge.
	"The European Council rightly decided yesterday to support the Barroso Commission's emphasis on growth and jobs as the first order priorities. There was also strong support for the Commission's proposals for improving and simplifying its approach to regulation.
	"The Services Directive is at the heart of this next phase of the Lisbon programme. Services account for 70 per cent of both the UK and EU economies. The directive is intended to liberalise this market. It does this by requiring national governments to make it easier for European service companies to establish on their territory so regulatory regimes must be simplified and made accessible. It also facilitates temporary cross-border trade in services.
	"This is unquestionably an ambitious measure. Authoritative studies show it could bring at least 600,000 new jobs in the EU, and add some 37 billion euros to the European economy. Many of the accusations made about it are unfounded or overstated. It does not mean that workers from a low cost member state can work permanently under their country of origin wages and conditions in another member state. The Posted Workers Directive already prevents this. It does not mean either that consumer protection and health and safety legislation will be circumvented or abandoned. Again, there are complementary measures which cover these areas.
	"It is true that there are some genuine concerns about the implications of the proposals—for example, for us the impact on the National Health Service—which need to be addressed in the negotiations. The directive inevitably and rightly will be amended as it goes through its legislative process. The Commission signalled this several weeks ago. It confirmed this again at the European Council. But these changes will be part of the normal legislative and negotiating process. Fortunately, the final decision will be by QMV. None of this has changed as a result of this European Council, whose conclusions were, of course, subject to the unanimity rule and over which, therefore, any member state had a veto.
	"To have withdrawn this directive as some wished would have been a grave injustice and error for Europe's economy. President Barroso is, therefore, absolutely right to maintain it. The Commission remains committed to the main principles of the directive, as do we, and many other EU governments, notably those from the new member states. Its adoption will be a key test of Europe's seriousness about reform.
	"The issue which underlies the debate about the Services Directive is the future of the European social model. Some, notably France, believe this model should remain in its existing form. Some, like Britain, believe firmly in Europe's social dimension but want it updated to take account of modern economic reality. Fortunately, in this debate—that will dominate discussion of Europe's economic future over the coming years, just as the debate over the transatlantic alliance will dominate debate on foreign policy—we have the benefit of some empirical evidence. The UK has shown that it is possible to have flexible labour markets combined with a minimum wage, tax credits to help families into work, family friendly policies to help work/life balance, the New Deal for the unemployed, record investment in education and skills and a strong economy. I believe that this is the modern social model for Europe, and recognised as such by many of our partners. The result has been higher growth, higher employment and lower unemployment for the UK. These successes can be replicated across Europe with the right policies.
	"It is worth adding that the UK has also benefited from its decision, unique among the large member states, to open its labour markets to workers from the new member states. Far from disrupting our labour markets, they have for the most part made a positive contribution to the British economy. If we want Europe to compete not just with the United States of America but China and India in the future, this type of open and flexible economy is precisely what we need.
	"I should report briefly to the House on four other issues covered during this European Council. We endorsed the deal reached in ECOFIN on reform of the Stability and Growth Pact. This introduces a more sophisticated system for implementing the rules, taking account of issues like the level of debt, investment and the impact of the economic cycle, all in line with UK objectives, while maintaining financial prudence.
	"On climate change, we discussed a long-term strategy for the EU, including progressive targets for reducing emissions. We shall take this process forward in the context of our G8 and EU presidencies later this year.
	"On Africa, the European Council noted the Commission for Africa's report and agreed that we had to step up our support for the continent. There is now unanimous support inside Europe for the policies that can confront the challenge, indeed the scandal, of thousands of African children who die needlessly every day and, where they survive, live lives of unimaginable poverty and deprivation. 2005 must be Africa's year.
	"On Croatia, we discussed follow-up to the recent decision by European foreign Ministers to postpone accession negotiations, but to start as soon as there is full co-operation by the Croatian government with the International Criminal Tribunal for Yugoslavia.
	"The British Government in principle strongly support Croatian membership of the EU. The next step is likely to be EU discussions with Croatia, led by the present and future presidencies, about how to achieve full co-operation with the tribunal. I should add that we also strongly supported democracy in Lebanon.
	"As was obvious from this Council and from the recent NATO/EU summits, there is a big debate going on in Europe today. It is vital to Europe's future. It is vital, too, to the future of Britain. In this debate, we know where we stand: in favour of the transatlantic alliance as the bedrock of our security; in favour of adapting Europe's economy to the future as the path to our prosperity. It is a debate in which we have allies. It is a debate we can win. But to win we have to participate fully, wholeheartedly, and with self- confidence and belief; not marginalising Britain, reducing it to the role of spectator. The policy of this Government is clear: to be at the centre of the debate, not the margins. I commend this Statement to the House".
	My Lords, that concludes the Statement.

Lord Strathclyde: My Lords, I thank the noble Baroness the Leader of the House for repeating the Statement.
	The House might be interested to know that the Prime Minister left the summit without giving a press conference—something unknown in new Labour's history. Does that not tell us all that we need to know about how he assessed what is increasingly becoming a humiliating fiasco?
	On the Lisbon agenda, the Statement had fine words, but what the conclusions actually say is,
	"The results are mixed; there are shortcomings; it is essential to re-launch the strategy; the Union should better tap into their synergies."
	I do not know about tapping into synergies, but I do know that you do not have to be as old a political hand as most noble Lords to recognise phraseology like that as spin to cover failure.
	There is great affection in the House for the noble Baroness and we shall miss her if press reports are correct that she is on her way to the United Nations. But will it not be with a great sense of relief that she closes her file today and realises that never again will she have to defend the Prime Minister's policies or his record of failure in Europe? It is a failure whether you judge it from my standpoint or that of the noble and learned Lord, Lord McNally, the leader of the Liberal Democrat Peers. Oh—he is not learned yet. Perhaps he is learned in other ways.
	The summit represents the end of a parabola of the Prime Minister's engagement with Europe. It began eight years ago with promises to lead Britain into the euro; promises in two election manifestos to give the British public a chance to vote on the euro; promises like so many others that proved to be just talk. It has ended with a stinging one-sentence dismissal of the euro project by the Chancellor of the Exchequer in his Budget. Did the Prime Minister explain Mr Brown's remarks to his EU colleagues? Or did he not want to admit who rules the economic roost in his increasingly divided Government?
	The Prime Minister's aspirations on the euro have crumbled. So too in Brussels did all his talk, repeated again in this Statement, for reform of the failed European social model. Eight years ago, the Prime Minister signed away Britain's opt-out from the Social Chapter. He bought into the European social model, which he now criticises, just at the time when its long-term cost was becoming apparent. Since then, Europe's economies have gone into reverse gear. Does the noble Baroness agree the European Union social model is unsustainable? Has she read paragraph 30 of the presidency conclusions, which states:
	"The Commission will reflect in the context of its ongoing work on the issues arising about how to ensure sustainable funding of our social model and will report".
	That is pure Euro-speak. In English, it means, "We are bust, and we do not have a clue what to do about it". So will the noble Baroness explain, given all the talk about the EU debate that is coming Britain's way, why the Prime Minister agreed that the failed social model should take precedence over vital free trade in services?
	The story of the Prime Minister and the social model is naive acceptance at the outset, big talk in the interim, and utter failure to secure reform at the end—rather like his experience on the euro. Paragraph 22 of the presidency conclusions on the single market in services, which is a key national interest for this country, states:
	"The internal market of services has to be fully operational while preserving the European social model. In the light of this ongoing debate which shows that the directive as it is currently drafted does not fully meet these requirements, the European Council requests all efforts be undertaken within the legislative process in order to secure a broad consensus that meets all these objectives".
	Well, there we are. I hope that the noble Baroness can clarify for the House what that means.
	Is it not the case that the Prime Minister went to Brussels to argue for free trade in services, which the Statement rightly says could bring 600,000 new jobs to Europe, but dropped his commitment to please the French president? Is it not the truth that when it comes to French national interest or German national interest when Europe would benefit from free trade, French politics wins, the EU loses, and the Prime Minister limply agrees?
	The leader of the French socialist party declared:
	"We can say today that the directive is finished and abandoned".
	So much for the UK's vital national interest. Was it not also shameful and humiliating that having given those commitments the Prime Minister was stabbed in the back by President Chirac as he drove to the airport, as France launched a new drive against the UK's rebate? So much for the fraternité between No. 10 and the Elysée Palace.
	Finally, I have laboured my points enough this afternoon, but the noble Baroness will be expecting me to raise the issue of Zimbabwe. I am sorry that I have to do it again. The Statement postures about 2005 being "Africa's year". Rightly, it draws our attention to the tragedy of dying children, poverty and deprivation, and we strongly support effective action to help Africa. But is it not dismal that yet again in the presidency conclusions the tyranny, terror and deprivation in Mugabe's despicable Zimbabwe were simply ignored in Brussels? The House respects the personal commitment of the noble Baroness to this issue, but the EU has once again said nothing and done nothing, and the blame for that lies not with her but with her right honourable friend the Prime Minister. In that aspect too the Brussels summit was a fiasco and a failure.

Lord McNally: My Lords, the prospect of the long weekends on the banks of Loch Lomond that he won for himself earlier today have clearly left the noble Lord, Lord Strathclyde, in a bouncy mood. We heard the words, "humiliation", "failure", "fiasco", "stabbed in the back"; and a bit of French-bashing. I sometimes wonder, after 30 years of membership, whether we in Britain will ever get round to treating European summits in any other way than as the noble Lord, Lord Strathclyde, has just done, reporting on some particularly fractious football match in the European championship where there has been lots of jersey pulling and tugging.
	The first base must be that our full-hearted participation in the EU is massively in the interests of the British people. Therefore, after all the fun of the noble Lord, Lord Strathclyde, I hope that Ministers will approach CAP reform, the Lisbon agenda, the Barcelona process and the next trade round with something of the same confidence and sense of purpose as did the noble Lord, Lord Cockfield, in the 1980s in pioneering the single market; or as the noble Baroness, Lady Thatcher, did in signing up to the Single European Act. There was leadership, vision and direction that the Government would do well to emulate.
	The Prime Minister is reporting back on the kind of horse-trading and hard bargaining that is inevitable particularly in a Community of 25. In itself that is a massive achievement for the people of Europe to bring together that Community by peaceful negotiation and agreement. I was particularly pleased to read that the Prime Minister said that he wanted to,
	"participate, fully, wholeheartedly, with self-confidence",
	in the decisions ahead. I would like an assurance that, after the local and county elections on 5 May, the Prime Minister and the Chancellor will then give their full attention to campaigning for a yes vote in the constitutional referendum.
	When we are negotiating about our budget contribution, it would help if the Chancellor did not always present us as an economic miracle and the rest of Europe as a basket case. The basket case may then say that we do not deserve the rebate. The Chancellor sometimes slightly over-eggs his success and plays down Europe's—the noble Lord, Lord Wedderburn, is agitated.

Lord Wedderburn of Charlton: My Lords, I apologise to the noble Lord for interrupting his fascinating argument. I noticed that he was making use—naturally—of the text on paper that has been provided to us for some hours now on the Council of Europe Statement. Is he aware that no such text on the Iraq Statement is available here or in the other place? After telephone inquiries, I have been assured that no Statement written on Iraq will be available until tomorrow in Hansard. In view of the practice of the past few years, will he join me in asking the Government to provide a written text of the Statement on Iraq before I go to bed tonight?

Lord McNally: My Lords, the noble Lord is a crafty old parliamentary operator, and has used an interesting device to put a question to the Front Bench. I look forward to an answer to it.
	My next point is on the services redraft. We strongly support the Government in keeping the services directive in play. Although we understand the defensive position of some of our partners, can the Minister assure us that we will continue to press vigorously for a liberalisation of services? This country is rather good at services, and we want to make sure that we have the benefits of a truly liberal market in Europe. Can she also assure us that the Lisbon strategy will have added impetus when we have the presidency of the EU in a few months?
	Do the changes announced to the stability and growth pact influence in any way the timing of the referendum on the euro? We on these Benches are keen to have that as soon as possible.
	Although we welcome the Prime Minister's words on Africa, does the noble Baroness not agree that the key to a really meaningful change in the relationship on Africa is substantial CAP reform and access to European markets for African produce?
	I return to the ebullient rant of the noble Lord, Lord Strathclyde. Will the Minister confirm that, in the broad sweep of European history, the EU remains one of the great triumphs of democracy, the peaceful settlement of disputes and the capacity of nations and peoples—often old enemies—to co-operate and prosper as an influence for good in the world? For that reason, should we all not welcome the Prime Minister's promise of a sustained campaign to reinvigorate our commitment to Europe and the British people's belief in it?

Baroness Amos: My Lords, I wondered whether the speech of the noble Lord, Lord Strathclyde, was some sort of swansong, and whether he knew a lot more about the outcome of the local and council elections on 5 May than I did.
	I listened with a degree of incredulity to the noble Lord use words such as "humiliating" and "failure", on the basis that my right honourable friend the Prime Minister is absolutely at the centre of the debate in the European Union and at this European Council. We have a European Union and a Council outcome that focus on jobs and growth, and a European Union in which it is absolutely clear that the countries will have to reform their economies, particularly if we look at what is happening in them demographically. We all recognise that that will not be an easy process, and we in the United Kingdom have made more progress than some of our EU partners. The Statement fully reflects our view that the progress has been partial, but it is ongoing.
	The noble Lord, Lord Strathclyde, commented on the UN and its development programme. Yes, I have been nominated for a job at the UN and am going through a process. However, I am a great believer in Europe and the European project. I have greatly enjoyed our debates in this House; they have given me an opportunity to watch with some pleasure the noble Lord's party dig itself into a deeper and deeper hole on the issue, totally marginalising itself in discussions in the context of the European Union, and looking backwards—not forwards—with continuing regularity.
	The noble Lord, Lord Strathclyde, spoke about the services directive and was right in quoting the outcome of the Council negotiations. I want to say two things; I say them also to the noble Lord, Lord McNally. Negotiations on the text of the directive are still at a very early stage. That was made clear earlier this month by Commission officials, and again at the Council meeting. We all knew that the process was one of negotiation. We are confident that member states' concerns can be met without compromising the proposals' liberalising objectives, a point raised by the noble Lord, Lord McNally. A fully functioning internal market in services can be achieved without undermining high standards with respect to workers and consumers. That is the tension that some countries see. As a Union, we want those two aspects balanced, and do not see the two objectives as mutually exclusive.
	I can tell the noble Lord, Lord Strathclyde, that the UK rebate was not even discussed at the Council meeting. The President of France may have made personal comments in relation to it, but I assure him that it was not discussed there.
	I said to my officials, "You know of course that the noble Lord, Lord Strathclyde, will ask me about Zimbabwe", and I am delighted that he did not disappoint me. I would take his remarks a lot more seriously if his party had made any attempt to tackle any of the issues in relation to Zimbabwe and the gross inequality there when Ian Smith was in power. Being lectured from the other side on these issues, when those inequalities were ignored consistently by the party opposite when it was in Government, is something that I have listened to across this Dispatch Box on many, many occasions and I take this opportunity to say that I find it difficult to take them seriously.

Lord Strathclyde: My Lords, I cannot possibly let the noble Baroness get away with that. She has only to remember the Lancaster House agreement, which was led by my noble friend Lord Carrington. It built on the work done by the noble Lord, Lord Owen, when he was Foreign Secretary. I cannot imagine what on earth the noble Baroness has been talking about. That was a great success for the Conservative Party, building on the work of the Labour Party when it was in government.

Baroness Amos: My Lords, the noble Lord may wish to recall precisely what happened in relation to land reform in Zimbabwe. The points that were being made by black Zimbabweans about the gross inequality in that country at the time were not remotely taken on board by the party opposite. I am in no way detracting from what happened at Lancaster House.
	The noble Lord, Lord McNally, raised important points related to reform of the CAP, the Barcelona agenda and trade, with all of which I totally agree. I also agree with the noble Lord that taking forward that agenda requires leadership, vision and direction and that is precisely what my right honourable friend the Prime Minister is giving. I also agree with the noble Lord that the expansion of the Union to 25 is a massive achievement. As a result of that expansion, we need to move forward on agreeing the constitution and I give the noble Lord the assurance that he seeks that after the local and council elections, not only my right honourable friend the Prime Minister, but the entire Cabinet and Government will work positively for a "yes" response on that constitution.
	Regarding the abatement and the noble Lord's description of the economy as an "economic miracle", given that we have had the longest period of economic stability since 1701, when records began, my right honourable friend the Chancellor has every right to be proud of his record.
	I have answered the questions on services. I entirely agree about the importance of giving added impetus to the Lisbon agenda.
	Regarding Africa, I say "yes" to the noble Lord on CAP reform and "yes" on the trade negotiations in Hong Kong in December. We must also look at aid volume, debt and the need to provide greater resources for health and education—but we must also look at governance.
	In response to the noble Lord, Lord Wedderburn, I understand that there is a copy of the Statement on Iraq in the Printed Paper Office. I apologise to the noble Lord if it was not there earlier.

Lord Clinton-Davis: My Lords—

Lord Tomlinson: My Lords—

Baroness Crawley: My Lords, there will be plenty of time for all noble Lords to make their comments known.

Lord Clinton-Davis: My Lords, first, I wish my noble friend all the best in whatever she does—I speak, I think, for all the Labour Members and all the Members of this House. We have benefited enormously from her leadership and I thank her profoundly for that.
	Does she agree that the contribution of the noble Lord, Lord Strathclyde, was as ill-advised as it was intemperate? Was she able to discern anything constructive from his remarks? I certainly could not. Is it not true that our full and positive participation in the affairs of the EU, particularly due to its new and enlarged membership, is vital now and in the future? I was unable to discern anything about the future in the remarks that the noble Lord made.

Baroness Amos: My Lords, I thank my noble friend for his opening comments and I entirely agree with him that the next phases with respect to the European Union need to happen on the basis of full and positive participation by the United Kingdom and there has to be a commitment to a strong relationship between the EU and the United States. My noble friend is right about the importance of our full participation being important now and in the future. I have already addressed the comments made by the noble Lord, Lord Strathclyde.

Lord Tomlinson: My Lords, first, I disagree with my noble friend Lord Clinton-Davies in the remarks that he made about the noble Lord, Lord Strathclyde. The noble Lord approached his speech with all the characteristics of a stand-up comic, which leaves him well-qualified to remain a long time as the Leader of Her Majesty's Opposition.
	Regarding the Statement, I wish to raise two issues with my noble friend, one that is in the Statement and one that is not, but both involve President Chirac. Will my noble friend confirm that President Chirac has no veto over the services directive? That directive is clearly, as the Statement said and as we know, of fundamental importance to this country, to the European economy and to the growth within Europe and its international competitiveness. While President Chirac may have a veto on the wording of presidency conclusions from a European Council meeting on the legislative process of the services directive, this is one of the areas where, thank goodness, we have no vetos but have qualified majority voting. I am sure that the noble Lord, Lord Strathclyde, will be the first to welcome that, so that we can make progress on this important directive.
	On the other hand, will she comment on President Chirac's ill-advised words at his press conference regarding the British rebate? Is it not true that this is one of the areas where my right honourable friend the Prime Minister has properly safeguarded the British veto, where there is no qualified majority voting and where we have all the cards in our hand? Did not my right honourable friend Mr Jack Straw make that clear at the summit? Perhaps she can confirm that there is one simple way of getting rid of the British rebate, and that is to reform the common agricultural policy in such a way as to achieve greater equilibrium of payments into it and receipts from it. Mathematically, the British rebate would then disappear. That was the point of view supported at the Convention on the Future of Europe.

Baroness Amos: My Lords, my noble friend is right. The entire House seems to be in a type of pre-holiday mood. Regarding the two main questions asked by my noble friend, I can confirm that heads of governments have a veto over presidency conclusions, but the issue of the services directive will be decided by QMV. With respect to the British rebate, my noble friend is again absolutely right. It was confirmed by my right honourable friend the Foreign Secretary that the UK does have a veto and he made it clear that we will use it if we need to.
	Regarding my noble friend Lord Tomlinson's final point about reform of the common agricultural policy— this has, of course, been a key element of our strategy. My right honourable friend Margaret Beckett has worked tirelessly to achieve this and, in addition, we feel that wider reform of the trade rules with respect to unfair subsidies and opening up access to markets needs urgently to be considered.

Lord Pearson of Rannoch: My Lords, I trust that it is in order for me to congratulate my noble friend Lord Strathclyde, if I may refer to him as such, for his excellent and penetrating contribution to this debate. It was quite the best intervention I have ever heard from the Conservative Front Bench on EU matters.
	In those circumstances, I ask the noble Baroness the Leader of the House whether she remembers a certain Mr John Major, who, as Prime Minister, thought he could safeguard our national interest by being nice to Brussels but who ended up vetoing everything in the run-up to the Amsterdam Treaty, which was unfortunately signed by a new Labour government in 1997. Does she agree that that new Labour government then launched another massive charm offensive towards the EU project? That charm offensive now also clearly lies in ruins with the Government being in increasing disagreement with Brussels, while the project itself is descending into disarray, unemployment and failure.
	In the spirit of our end-of-term mood, I therefore ask the noble Baroness the Leader of the House when the Prime Minister will learn that, if you get into a pool of water with a hungry man-eating crocodile and pat it on the snout, it does not roll over and gurgle with pleasure; it bites. Is that not the nature of the beast, and is it not therefore time to get out of the pool as soon as we possibly can?

Baroness Amos: My Lords, first, I hope that the career of the noble Lord, Lord Strathclyde, will not come to too early an end as a result of that endorsement.
	I am sure that the noble Lord, Lord Pearson of Rannoch, does not expect me to agree with anything that he said. Our entire policy has been to be part of, and to influence, that process, and we have been enormously successful in doing so. We do not think that it is right for the United Kingdom to be marginalised. We have worked successfully to achieve that, and we shall continue to do so. I do not know whether the noble Lord, Lord Pearson, makes a habit of getting into pools with man-eating crocodiles, but I certainly do not and I can vouch for the fact that my right honourable friend the Prime Minister does not do so either.

Lord Lea of Crondall: My Lords, I join all those who have expressed good wishes to my noble friend the Leader of the House for the immense contribution that she has made to DfID and to the work in Africa and, now, for the very strong commitment that she has shown to the European Union. It is very rarely mentioned in this House but the European Union is playing an increasing role in Africa. Questions relating to Africa have moved from the principle of non-interference to the principle of non-indifference, and that is very much the result of constant pressure from people such as the Leader of the House. I am sure that that will be further reflected in whatever future capacity she holds.
	I turn to the speech of the noble Lord, Lord Strathclyde, and the return to the narrow dogmatism of the Conservative Party in 1988. I remember that I was at the origin of that. I remember Mrs Thatcher's reply to the speech that Jacques Delors gave when he came to the TUC in 1988 and helped to convert it—and, indeed, the Labour Party—to move in a pro-European direction. Mrs Thatcher's Bruges speech led directly to her going into the wilderness, and, for that reason, among others, the Conservative Party has been in the wilderness ever since.
	With regard to the dogmatic rejection of any social dimension, does my noble friend agree that, just as the services directive is subject to QMV, as my noble friend Lord Tomlinson said, so is the agency workers directive? As my noble friends Lord Triesman and Lord Whitty pointed out the other day in answering questions, there is a connection between the two, and we look forward to there being support for the services directive so long as it respects the rights of workers right across Europe.

Baroness Amos: My Lords, once again, I thank my noble friend for his positive comments. I have to say to the House that I am beginning to wonder what will happen if, having gone through this process, I am not successful and noble Lords still find me on these Benches in a few months' time.
	On the issue of the services directive and, indeed, the Social Chapter, my noble friend is absolutely right.

Lord Harrison: My Lords, I, too, pay tribute to the outstanding leadership of the Leader of the House and wish her well in whatever the future beckons. I apologise that I was not present for the early stages of the Statement, but I wonder whether my noble friend can help me with regard to the summit and the Lisbon agenda.
	My noble friend will know that some 13.1 billion euros are apportioned to programmes from Europe associated with lifelong learning—in turn, to help with education and training for young and older people in the European Union—as part and parcel of the Lisbon agenda of making Europe competitive. Can she give us the assurance that the new, severer focus on economic issues that President Barroso has outlined will not exclude the work on lifelong learning? Many of us believe that it has as important an economic bearing on the future of Europe as it has on the well-being of its citizens.

Baroness Amos: My Lords, my noble friend is right. We have to strike the right balance here. While considering issues of economic reform, we must maintain our interest in the whole skills agenda, which is also an important part of the Lisbon agenda. The focus on jobs and growth is not about economic development at the expense of skills development and lifelong learning; the two have to go hand in hand.

Baroness Royall of Blaisdon: My Lords, contrary to the comments of the noble Lord, Lord Strathclyde, I point out that a modernised social European model is flourishing in this country. However, does my noble friend the Leader of the House agree that the European social model can be retained throughout the EU 25 only if we have a vibrant European economy and that, to achieve such an economy, we have to fulfil the Lisbon agenda, which must include the fulfilment of the services directive?

Baroness Amos: My Lords, my noble friend is right: we must have a vibrant EU economy. It is also important to remind the House that we have achieved much since Lisbon was launched in 2000: 6 million jobs have been created since 1999; opening up EU telecommunications has reduced the cost of UK phone calls by roughly 50 per cent domestically and internationally; the liberalisation of EU energy markets is bringing better prices, efficiency and choice and better levels of service; and Europe has established a fast and rapidly expanding broadband network to stimulate innovation. Let us not forget that. Let us also build on Wim Kok's November report to heads on Lisbon performance, which set out very clearly the direction that we must take, and build on the strategy set out recently by President Barroso.

Lord Woolmer of Leeds: My Lords, does my noble friend the Leader of the House recognise that many of the new member states will be delighted that the United Kingdom has maintained its support for the services directive? It would be deeply ironic if, having joined the European Union and fulfilled all the conditions of the European acquis, Europe then appeared to pull up the drawbridge by saying to them that they are not really welcome to sell their services across Europe. Does she agree that we understand the problems that France and Germany are going through? The answer to them is not to revert to protectionism but to face up to the need for change and to be more competitive. That is the way forward.

Baroness Amos: My Lords, my noble friend is quite right. He will have seen from the negotiations that the new member states are our allies in that respect. We recognise the challenges facing some of our EU partners and we know that this kind of reform agenda is not easy. But it has to be gone through for the future prosperity of the European economy.

Royal Assent

Lord Brougham and Vaux: My Lords, I have to notify the House, in accordance with the Royal Assent Act 1967, that the Queen has signified her Royal Assent to the following Acts and Measures:
	Constitutional Reform Act,
	Income Tax (Trading and Other Income) Act,
	Child Benefit Act,
	Stipends (Cessation of Special Payments) Measure,
	Care of Cathedrals (Amendment) Measure,
	Church of England (Miscellaneous Provisions) Measure.

Mental Capacity Bill

Read a third time.

Baroness Knight of Collingtree: moved Amendment No. 1:
	Page 2, line 3, at end insert—
	"( ) No person, whether a healthcare professional or not, shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any way in the withholding or withdrawing from P of—
	(a) any life-sustaining treatment, or
	(b) nutrition or hydration, however provided,
	where that person has a conscientious objection to withholding or withdrawing."

Baroness Knight of Collingtree: My Lords, at the conclusion of the earlier debate on this matter on 15 March, I had no intention of returning to this subject today. I accepted what was said, which was that the law already protects doctors and nurses who are forced to act against their conscience. I withdrew the amendment. But since then I have been deluged with information and comments from people outside this place who read the report of the debate on 15 March and contacted me.
	Those people claim that much of what was said against my amendment was inaccurate. The Minister may have heard from one of those people, a consultant in the NHS, who told me that he is so upset by the denial of conscience in the Bill that he will resign if it goes through. The Minister is shaking her head. The doctor concerned, who takes a valuable part in the NHS as a consultant, is quite sincere and I have no doubt that he means every word he said.
	As an experienced member of the medical profession, he would be aware that there is printed GMC and BMA guidance to the effect that doctors are entitled to have their personal beliefs respected and that conscientious objection is recognised. That was quoted by the noble Baroness, Lady Barker. But I am assured that the Bill introduces a new situation with new responsibilities and new aims. As it stands, there will be no protection for conscience in the Bill and no statutory protection for doctors or nurses who cannot, in conscience, comply with the decision of a patient or an attorney to refuse life-sustaining treatment or to withhold food.
	Another correspondent wrote that the right to conscientious objection is essential for the practice of medicine. It is essential for the protection of patients and as a safeguard for the continuing employment of doctors and nurses to avoid discrimination.
	This is an important point for the medical profession, patients and the NHS. Several noble Lords followed the right reverend Prelate the Bishop of Chelmsford in his view that a person who has a conscientious objection to taking a course must locate someone who has no such objection and who will take the course. The more I thought about that, the stranger I thought it was. The right reverend Prelate apparently ordered a clergyman who had a conscientious objection to conducting a marriage to find someone else who would conduct the marriage. In my book, that is telling the clergyman that he must equivocate and ensure that the people who have asked him to act against what he believes, rightly or wrongly, to be immoral get what they want.
	I am aware that parishioners have the right to marry in the parish in which they live. I do not argue with that at all. But what is wrong with a clergyman politely telling people that he has a moral objection to carrying out their request and asking them to seek out another priest? There are plenty about. The couple will easily find someone who will marry them, so they will get their wish. I have attended many marriages that were not conducted by the priest in charge of the parish but by a relative of the bride or bridegroom or by their old friend. It is not uncommon. My parents divorced when I was five and, when I was about nine, my mother decided to marry again. At that time, it was very difficult to find a clergyman who would marry divorced people in church. The clergyman who she asked would not do it, so she and her husband-to-be went out and found another clergyman who would marry them. I never heard her complain.

The Lord Bishop of Southwark: My Lords, I did not hear the contribution of my noble friend the Bishop of Chelmsford, but he was probably referring to the fact that any parishioner has a right to be married in the parish church, even if he is not a member of the Church of England, indeed, even if he is not a member of the Christian faith. If a vicar is not prepared to conduct that marriage, the bishop has the responsibility to make sure that that marriage can take place because it is the law of the land. That is not the same as somebody who has been divorced wishing to be remarried in church. The law of the land does not require such a person to be married in the parish church. That is at the discretion of the vicar, having consulted the bishop.
	I do not know whether that helps, but the Church of England has to obey the law of the land. If an individual's conscience does not allow him to do so, the bishop must make sure that some other minister will obey the law so that every citizen has his rights.

Baroness Knight of Collingtree: My Lords, I am most grateful to the right reverend Prelate. He made two points that are extremely helpful to me. I was not saying that my mother's situation applies here. I was trying to make the point that there were other priests. She could go and find someone else to marry her. I would not argue with the right reverend Prelate about the rights of people to be married in a certain church.
	The right reverend Prelate then said something that I found enormously helpful and that I wish the right reverend Prelate the Bishop of Chelmsford had said. The right reverend Prelate the Bishop of Chelmsford said that he told the priest that he must find somebody else to carry out something that he did not find himself able to do. The right reverend Prelate the Bishop of Southwark has just told the House that the bishop can do that and that is what I was going on to say; that surely it would be possible to ask the bishop to find someone and surely there would be a man or woman who took a different stance on the moral issue and who would undertake the task. So, I hope that that point is clear.
	Similarly, in response to the noble Baroness, Lady Murphy, it seems to me wrong to pretend that doctors will be permitted a conscience, when they can have one only if they transfer the patient to the care of others who do precisely what they are unprepared to do themselves. Like priests, doctors are not few and far between, even in hospitals.
	The consultant caring for the patient surely might be able to ensure that another doctor or nurse took over from the doctor or nurse who could not in conscience act. I would find it terribly difficult to claim a conscientious objection about any course. However, surely all of us in this House can acknowledge that every one in this land, every citizen, has a perfect right to a conscience and not to be asked to act against his or her conscience.
	I am told quite unequivocally that the right to a conscientious objection does not exist in statute law. I received that information after the debate on 15 March. Therefore, it is essential that a conscience clause is included in the Bill to safeguard vulnerable patients and the employment rights of doctors and nurses within the NHS. That is all I ask for.
	The noble Lord, Lord Lester, spoke against my conscience amendment. He said that healthcare professionals have the right to a conscientious objection under the Bill. I am assured that they will have no such right if it is taken away from them by statute, as this Bill will do. That is the point that is worrying me so much. If statute does not allow a right of conscientious objection and the courts think that that is contrary to the convention, then all they can do is to give a certificate of incompatibility. They cannot strike down an Act of Parliament. That is not my opinion but the opinion of a legal expert who wrote to me to express his concern about the Bill being passed with nothing to protect doctors and nurses as far as their consciences are concerned.
	This person also assured me that my amendment would most certainly not overturn the Bland decision or decisions of that kind, nor the legal and ethical principles in it—as the noble Lord, Lord Lester, said—since my amendment refers only to this Bill, not to the general power of the courts to make Bland-type orders.
	If I had not had so many involved and experienced people contact me, I would have been happy to let the matter lie. But why are these people so worried? Why does that consultant say that he will resign if the Bill goes through with no protection for conscience? What is so wrong about giving a specific protection for what is surely a basic human right? That is all I ask for. I have no wish to speak longer. I hope I have made my case. I have pleasure in begging to move the amendment.

Lord Alton of Liverpool: My Lords, I put my name to this amendment and have spoken in favour of there being a conscience clause provision in the Bill. I argued for that at Second Reading, in Committee and on Report. I think that your Lordships would be surprised if I did not briefly intervene to say again that I think that we should make belt-and-braces provision.
	At the heart of the argument is the comment made on Report by the noble Lord, Lord Lester of Herne Hill. I refer your Lordships to cols. 1301 to 1304 of the Official Report of our debates on 15 March. I had set out a number of examples of people whose conscience had not been taken into account in the workings of the present abortion law. It is worth noting that the 1967 Act contains a conscience clause. However, I was able to cite a series of cases from that of a secretary to that of a social worker who found it very difficult to work inside an abortion ward and who has now been committed for psychiatric treatment, having been suspended for a full year.
	In answer to that, the noble Lord, Lord Lester said:
	"Some of the examples that he gave"—
	that I had given—
	"in my view, cried out for an effective remedy".—[Official Report, 15/3/05; col. 1304.]
	I was grateful to him for that comment.
	I went back to look at the Social Services Select Committee's Tenth Report, published in 1990 in another place, which dealt with the "conscience clause" in the Abortion Act 1967. In its recommendations, it clearly stated:
	"The first point that needs to be made arising from our inquiry is that in evidence to the Committee everyone was agreed that some form of conscience clause is necessary".
	That was the view of a Select Committee that looked at the issue. It is not good enough, therefore, to rely merely on Article 9 of the ECHR, as the noble Baroness, Lady Knight, has rightly told us today.
	The Select Committee also said:
	"Conscientious objection is not just a matter for doctors".
	I know that we will be told today that doctors have this or that amount of protection. However, the Select Committee said:
	"difficulties do arise for other medical and non-medical staff. Indeed, it may be more difficult for non-doctors to claim a conscientious objection as they are able to exercise less control over the work that they do".
	Indeed, the examples that I gave to your Lordships last week bear that out.
	The Select Committee also said:
	"We recommended that the Department of Health considers extending the provision of section 4 of the 1967 Act to cover some ancillary staff".
	It went on to say:
	"the Department of Health should bring forward proposals to delete the provision that the burden of proof of conscientious objection"—
	which is exactly the point that the noble Baroness has just made—
	"shall rest upon the person claiming it".
	In other words, it should not be a matter of the person affected having to find someone else to do something that they find unpalatable, whatever that may be.
	The Select Committee also said:
	"Candidates should not be asked such questions and we recommend that guidance to this effect is issued to medical schools".
	It said that because it saw that gynaecology and obstetrics had been so deeply affected that many orthodox Jews, Muslims and Christians were no longer able to go into those professions because of the way that the 1967 Act operates. The same will happen with geriatric care and palliative medicine unless we make such provision.
	Finally, the Select Committee said:
	"We therefore recommend that the Department of Health should continue to monitor the working of the abortion service from region to region".
	When the Minister replies, I should be interested to know whether that particular recommendation—made 15 years ago—has been acted on, whether we are monitoring how the conscience clause in the 1967 Act works and what lessons we are drawing from it in terms of what we do in this legislation.
	The noble Baroness rightly cited the case which I drew to the attention of a Minister yesterday of a consultant who says that he will leave the service if the legislation goes through and does not provide a conscience clause. I also sent her a copy of the legal advice that the noble Baroness relied on in moving her amendment today. This is a compelling case and I am surprised that we still have to argue it.

Lord Patten: My Lords, I have four points to make. First, I cannot predict how many, if any, amendments will be accepted during the course of your Lordships' considerations this afternoon. However, someone more statistically adept than me has calculated that 94 amendments will make their way down the Corridor to another place. An informal message has come from another place that they will devote precisely one hour to the consideration of these amendments.
	I cannot under any circumstances advise another place how to proceed, but I know that there are those listening on the Government Front Bench who are members of the Whips' Office and the usual channels. I was never considered brutal enough to be employed in the Whips' Office in another place, not having that underlying streak of toughness which I am sure is inherent and present in many of those who serve your Lordships on both sides of the Chamber, but I think that an informal message might go through the usual channels to another place that an hour simply is not good enough.

Baroness Knight of Collingtree: My Lords, I am most grateful to the noble Lord for giving way. I wonder whether he can tell us how many of those 94 amendments were government amendments and how many were moved by those of us with concerns about the Bill?

Lord Patten: My Lords, I cannot give an exact figure, but I shall give way to a statistically adept noble Lord.

Lord Alton of Liverpool: My Lords, I am happy to help the noble Lord on that point. I, too, was looking at these amendments. Every one of the 94 amendments to which the noble Baroness referred is a government amendment. Of course, some of them reverse amendments that were passed in another place. The Member of Parliament for Knowsley North, for example, has moved amendments which have been replaced by Lords amendments. I am sure that those in another place will have a view on these matters.

Lord Pearson of Rannoch: My Lords, surely many of the government amendments were tabled in agreement with what had been said in your Lordships' House.

Lord Patten: My Lords, I wish only that the amendments, whoever has tabled and considered them, should be properly considered in another place and in this House when they come back.
	My second point is that the conscience issue, like the pro-life, euthanasia and Eugenics Society issues will be highlighted increasingly in future years. Whoever forms the government after the next general election will find conscience issues coming increasingly to the fore. Only this morning, the Select Committee on Science and Technology in the other place made an announcement on what the media would call "designer babies". I can see those issues roaring up the political agenda. The Front Benches on both sides of the House will need to be prepared for that issue, which, I know, everyone in this House agrees is not party-political.
	Thirdly, there are other issues that bite on conscience matters. Doctors must consider conscience issues all the time and sometimes they have to weigh them up against cost. I wish to return to the Burke judgment, currently before the courts, as it bites wholly on the conscience issue, and the remarks of the noble Baroness, Lady Ashton of Upholland, in Committee about the reasons why the Government wish to appeal that judgment. I quote exactly, not out of context:
	"However, the judgment could be read as allowing patients to request any life-sustaining treatment, even if it was harmful to the patient or if the treatment was not available, such as a transplant or a very expensive, experimental treatment that in the clinical judgment of doctors was not appropriate or in the patient's best interests".—[Official Report, 8/2/05; col. 739.]
	Those are the only grounds on which the Department of Health has joined appeal; that is what the noble Baroness said.
	However, there is now in circulation a letter from the Department of Health's office of the solicitor to the registrar of the Civil Appeals Office, dated 7 December 2004, seeking access by the Secretary of State for Health to request the court's permission to intervene in the appeal. In paragraph 16 the solicitor writes in this context,
	"the Secretary of State would wish to put before the Court evidence of the actual cost of ANH in individual cases and the incidence of the provision of ANH (or artificial nutrition or artificial hydration on their own) in NHS hospitals. Again, it is the Secretary of State who is best placed to make these points, as they affect the NHS as a whole; and the Secretary of State who has perhaps the most direct interest (as, ultimately, the providing and paying party) in being able to address the Court on these matters".
	It is very important that the Minister clarifies whether the simple cost of the provision of ANH is a material matter to the Government. I could well imagine that if the noble Baroness says "Yes" and that she agrees with the grounds for entering the appeal put forward by her right honourable friend the Secretary of State for Health, many people would find their conscientious objections strengthened not weakened.
	Fourthly, and lastly, some feel that the statute book should not be cluttered up with declaratory statements—otiose verbiage on the face of statutes. I say a brisk "Hear, hear!" to that. However, where there are important issues of conscience and where there is disturbance in those whom we seek to serve in the wider world, as democrats in this place as in another place, it is of enormous value to have a declaratory provision in the Bill in a case such as this. After all, the Government have included a declaratory provision at the beginning of Part 3:
	"For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (C.60)(assisting suicide)".
	Given that precedent, and the fact that the statute book is full of such declaratory statements, I do not see, in the face of the powerful arguments put forward by my noble friend Lady Knight of Collingtree, that there could be any objection to assuaging the fears of those who do not think that they will be protected by the European Convention on Human Rights if this declaratory provision is not included. There is no reason why the provision should not be included.

Lord Turnberg: My Lords, as I understand the amendments tabled by the noble Baroness, Lady Knight, they are designed to ensure that doctors and others can object, because of their conscience, to proceeding with this process. We all want provision to be made for conscience objection; the question is whether it needs to be included in the Bill in this form or whether it exists elsewhere.
	That leads us to the very legal discussion of whether or not sufficient protection already exists for those with a conscientious objection—unfortunately, I am not a lawyer. Until today, I believed that there was. As I understand this Bill and other legislation, there is protection. If that is the case, we certainly do not need this provision.
	To reassure a consultant who may resign is not a good reason for including a provision in the Bill, if he could be reassured by another means. I look forward very much to the Minister's explanation of exactly what protection already exists. I believe that it does exist.

Baroness Finlay of Llandaff: My Lords, I apologise to the House that I was abroad during the previous stages, but I am glad to be here. I have been reading Hansard while I have been away.
	The sentiment behind the amendment is very clear. I feel strongly that people must be able to exercise their conscience. However, I am concerned about the wording of the amendment, partly because I am not sure what would happen to other patients if somebody simply exercised their conscience under the amendment and walked away.
	To clarify the position I telephoned the head of the human resources department in my own trust, Velindre NHS Trust. He was most helpful and took advice more widely in a short time. In a way, it was useful, as it mirrors the clinical situation where he is put on the spot and must come up with an answer quickly. He was quite clear that if a member of the clinical team, at whatever level, had a justified conscientious objection—not a frivolous one—and did not feel that they could go along with a decision, they certainly were protected and could not be forced to act. It would be against the human rights of that employee if they felt forced to act.
	However, the head of human resources also pointed out that it is appropriate that the employee should be required to help locate somebody else; otherwise, they could walk out of the hospital and leave other patients' lives in jeopardy. It would be appropriate for them to try to find somebody with whom to swap in order to help whoever was leading the team. I tried to work through a clinical example. I could envisage a situation where one might even defer a decision by a few hours until a different team of nurses, secretarial or porter staff came on duty. That would enable the individual employee to exercise their conscience while the specified decision of the patient and/or of their next of kin—or their attorney, if they have made such provision—can be gone through with, and those in the clinical team who agree with the decision can proceed without harming the individual employee. I found that a most helpful conversation.
	It is also worth remembering a point that was made in helpful correspondence I received from the Minister on advance decisions; that is, the phrase that if you are not satisfied it is valid, you do not have to exercise it. That leaves a lot more to the conscience of the individual clinician in the interpretation of that decision. In other words, if you are going to go along with a decision, you must be satisfied that it is valid. If you have doubt—the Minister's speeches that I have read in Hansard have been clear—you must default to life-preserving, life-prolonging treatments.
	I believe that it is for those reasons that the noble Baroness, Lady Knight, has brought forward an amendment with the best of intentions. However, I am slightly concerned that not only is it unnecessary, but that it might also inadvertently harm the care of other patients by allowing someone to walk away from the clinical scenario.

Lord Christopher: My Lords, I apologise for being late—in particular to the noble Baroness, Lady Knight, who has been very kind to me recently. I realised that I had not paid my lunch bill and I did not want to leave the House for a week in debt.
	It is very difficult to argue with what the noble Lord, Lord Patten, said, but I am extremely grateful to the noble Baroness, Lady Finlay, for confirming what was in my mind. I do not quarrel with the thought that conscience may become more of an issue as years go by. There are all sorts of reasons why that is so and it begs the very important question of how it should be dealt with in Parliament. Should it be dealt with in legislation or in some other way?
	My common sense told me, which the noble Baroness, Lady Finlay, confirmed, that if a doctor or a nurse has a serious conscientious problem over what he or she is asked to do, it would be an extraordinary organisation that did not somehow meet that problem, which I think has been confirmed. In a sensible organisation one does not want to have an argument. Indeed, that happens on occasion with our Whips when we say, "I am terribly sorry. In conscience, I cannot oppose a Liberal Democrat amendment". It is not a difficulty that arises frequently but it can arise. Therefore, it is far better to consider alternative ways to deal with the problem.
	I shall conclude with an anecdote, because something that the noble Lord, Lord Patten, said rang a bell with me. Here we are in the very last knockings, perhaps, of legislation in this Parliament. My anecdote goes back to 1976 when I was on the Civil Service council that dealt with pay and we had what I thought was a good offer. We were arguing. Some of my colleagues were saying that it was not enough, "No" and so forth.
	Off the top of my head, I said, "Do you realise that here we are havering around and that any minute we may hear that the Prime Minister has resigned"? There was a knock at the door and a secretary walked in with a note to give to the chair. It said, "The Prime Minister has just resigned". We never got that pay award.
	There is a serious risk, if we are not careful throughout the rest of this day, that we may lose all the good that is in this Bill. I hope that no noble Lord, except in the most extreme circumstances, which I do not see on the Marshalled List, is prepared to push this to the brink, because we may throw the baby out with the bath water.

Baroness Masham of Ilton: My Lords, I have added my name to these amendments. We are discussing a very serious matter. What is more important than life and death? With our multinational and multiracial society we need clarity on the freedom of people's consciences. The debate on these amendments shows how different people interpret so many things in different ways. We need clarity. I support the amendments.

Baroness Greengross: My Lords, on thinking very carefully about the amendment put forward by the noble Baroness, Lady Knight, and her colleagues, in total sincerity, we are in danger of forgetting that the Bill is to protect primarily the patient. We are getting into a situation where the patient's needs would become secondary to the needs of the people caring for them.

Baroness Ashton of Upholland: My Lords, perhaps I may begin by saying to the noble Baroness, Lady Knight, that I absolutely agree that no one should be pressurised into doing anything against his or her personal values and beliefs. But I still stand by what I said at previous stages of the Bill. The noble Baroness, I trust, will accept that at each stage of the Bill I go back and look at what we have said and make sure that the advice and evidence that I receive is accurate. I have, indeed, ensured that in this case it is right.
	As I explained to the noble Baroness and to the House at Report stage, health professionals already have the right to conscientious objection. But, of course, they have to arrange for the patient's care to be transferred to a suitable practitioner and, of course, make sure that the patient does not suffer. That would be inappropriate, and I am sure that they would not wish to do that.
	On Report, the noble Lord, Lord Alton, and the noble Baroness were right to give examples of individuals. At that point, I made the offer that if they gave me the information, I would ensure that those individual cases were examined. I hope that they will do that, for nothing has been forthcoming since we had those discussions. If they are of such an important nature, as the noble Lord particularly felt, I am willing to make sure that they are followed up. I hope that he will bring them to my attention.

Lord Alton of Liverpool: My Lords, perhaps the noble Baroness will recall—it is in Hansard—that a record of each of the cases was in the debate last week. But I am very happy to meet her officials to give the identities of the people that I mentioned.

Baroness Ashton of Upholland: My Lords, that would be extremely helpful, for we need the identities in order to follow up the cases with the individual trusts. If the examples are as they seemed, the issue is not one of this Bill, but is one of ensuring that the way in which the NHS is operating is appropriate. We would want to do that. I am grateful to the noble Lord for clarifying that he will do that, and I look forward to receiving the information.
	Case law is very clear on these issues. It may be helpful if I briefly set out the current position, both in case law and in medical guidance. All health professionals have the right, whether for reasons of conscience or on other grounds, to transfer the care of a patient to a colleague. In Re B, the President of the Family Division said:
	"If . . . the doctors are for any reason unable to carry out the wishes of the patient, their duty is to find other doctors who will do so".
	Medical guidance is similarly clear. GMC guidance concerning conscientious objections to the withdrawal or withholding of treatment from a patient refers to the doctor's duty to,
	"ensure, without delay, that arrangements have been made for another suitably qualified colleague to take over their role, so that the patient's care does not suffer".
	The BMA guidance about a doctor's conscientious objection following an advance decision to refuse treatment states:
	"In an emergency, if delegation is impossible, the doctor or nurse must comply",
	with that decision, while of course ensuring that he or she finds someone to take over the care.
	The position is different from that of the Abortion Act 1967. I am trying to check for the noble Lord, Lord Alton, precisely what monitoring has been done since the Select Committee reported 15 years ago. I am sure he will understand that, because we are dealing with this Bill, I do not have to hand what happened as a consequence of looking at the Abortion Act.
	The explicit conscience clause in the Abortion Act modifies the duties which would otherwise be imposed on the clinician by the law of negligence. It provides a defence against liability in a case where the clinician does not provide the treatment. As noble Lords propose, the equivalent in this Bill would be to provide a defence against liability in assault, when a doctor treated a patient when that treatment was contrary to either the patient's valid and applicable advance refusal or contrary to the patient's best interests.
	These amendments, if carried, would change the current position on conscientious objection for patients who lack capacity. They would allow for a doctor to withdraw from the care of a patient without making arrangements for that care to be transferred. They would protect a doctor from liability if, for reasons of conscience, he continued to treat the patient when that treatment was contrary to the valid and applicable advance decision, bearing in mind the safeguards that the noble Baroness, Lady Finlay, has already described about the test of being satisfied and how that test is, if you like, at the bottom end of the scale to ensure that if doctors have any concerns at all they can treat without fear of any liability.
	Under this amendment, doctors could also give treatment even when it was contrary to the patient's best interests. That flies in the face of everything we are trying to establish in the Bill. The amendment would also create a confusing situation whereby a doctor with a conscientious objection would have to arrange for substitute care for a patient who has capacity, but could simply walk away from a patient who lacks capacity. That cannot be right.
	It is important to balance the right of a doctor to conscientious objection with the rights of patients to decide what treatment they would want to refuse. That is what happens now. I believe that we should continue in that vein.
	I want to tackle briefly the points raised by the noble Lord, Lord Patten, which I am sure he would accept are slightly wide of the amendment before us. None the less, I am prepared to deal with them. I should say, first, that the Government will give evidence in the Burke case on life-sustaining treatment in general, which of course includes ANH. It is relevant to the appeal. I shall quote precisely what the Department of Health has said:
	"We agree that people should be able to request artificial nutrition and hydration. That is what happens now and this is not the aspect of judgment which has motivated us to appeal".
	I do not think that the department could be clearer than that. As I have said at previous stages, we must look at the breadth of the judgment which suggests within it that patients can demand treatments. That is an issue both in terms of doctors' clinical judgment and, ultimately, in terms of resources. In those circumstances and drawing on his own experience, the noble Lord will not be surprised to hear that clarity is being sought by the department.

Lord Patten: My Lords, I am grateful to the noble Baroness for giving way. I appreciate entirely what the Department of Health has said in what I guess is a statement—I am not sure whose words the noble Baroness has been good enough to bring to our attention. But I referred to the letter from the office of the solicitor in the Department of Health to the registrar in the Civil Appeals Office stating the grounds on which the Department of Health wishes to enter into this appeal. While I shall not weary the House by repeating what it says—it is on the record already—it is quite specific. It does not refer to the exceptional costs that follow from pursuing new and experimental procedures that a patient might unreasonably be judged to demand, but refers simply to the cost of ANH in individual cases. There seems to be a difference between what is being said by the spokesperson for the Department of Health and what is being said by the department's own legal representatives.

Baroness Ashton of Upholland: My Lords, there is no difference whatever. If the noble Lord heard what I said at the beginning of my remarks, he will know that the costs of life-sustaining treatment were being submitted as part of the evidence, which includes ANH. However, I read out what was said by the Secretary of State in terms of the purpose behind the joining of the appeal. It does not seek to challenge the desire of people to request ANH provided that it is in their clinical best interests, which I am sure the noble Lord accepts, but simply to look at the broader aspects of the judgment. That was also most certainly the basis of my discussions with Ministers.
	Finally, I make no apology for the fact that we have almost 100 amendments to the Bill. None reverses a decision of another place. On the contrary, all the government amendments either take forward commitments we made in another place or respond to issues that were raised and have been listened to by the Government in your Lordships' House. The House and the noble Lord should welcome that because it demonstrates how hard we have tried to make sure that the Bill leaves this House in good order and provides the other place with an opportunity to debate it effectively.
	I have said all that I can say. I am absolutely clear in my mind that health professionals will be able to cite conscientious objection in circumstances where it is appropriate. I have already offered to look at individual cases. On the consultant who is saying that he wishes to resign, I would be happy to put him in touch with people who, it is hoped, will be able to persuade him otherwise by assuring him that, in case law and in guidance, we already have sufficient safeguards to ensure that doctors are covered.
	More important is that the effect of these amendments would be to the detriment to the Bill. I hope that the noble Baroness will feel able to withdraw them.

Baroness Knight of Collingtree: My Lords, I am grateful for the comments just made by the noble Baroness, Lady Ashton. However, I still cannot understand why it is that so many people outside this place are very worried on this score. If it is correct that doctors and nurses will still be permitted to act according to their conscience, why have so many of them been in touch with me? That, I do not understand.
	I am bound to say, with the greatest respect to the noble Baroness, Lady Finlay, that I am just a little tired of having an argument which is used against me in one respect suddenly being turned around the other way when it suits those who do argue against me. I refer in particular to the fact that I have repeatedly tried to ensure that patients in hospital are given food and liquids. I am told that everything is perfectly all right for all patients in hospital because there is such a thing as good practice. It is always done and patients are always looked after. But, suddenly, the passing of my little amendment would mean that patients will not be looked after. I do not accept that. Surely the consultants in charge of patients and those who ensure that everyone is treated properly would be absolutely appalled at the idea that clinicians and other staff will walk away from wards because we have pressed for the right of some of them to have a conscience.
	I do not think that this series of amendments goes against patients' interests for one major reason, which is this: nothing that helps doctors and nurses to do their jobs effectively and within their consciences could possibly harm patients. Therefore I do not accept that argument.
	I intend to withdraw my amendment for the simple reason that I know very well that while a number of noble Lords would vote in support of it, it would not be carried. I have no wish to waste the time of the House. But at least it is on the record that I have a conscience and have been determined to fight for others to have one too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 5 [Acts in connection with care or treatment]:
	[Amendment No. 2 not moved.]
	Clause 11 [Lasting powers of attorney: restrictions]:

Earl Howe: moved Amendment No. 3:
	Page 7, line 24, leave out from "treatment," to "and" in line 25.

Earl Howe: My Lords, I make no apology for returning to an issue which I have raised both in Committee and on Report: the question of whether a person acting under a lasting power of attorney should have the power to consent to or refuse life-sustaining treatment.
	I am afraid that my deep concern on this has not been dispelled by the Minister's answers. She has pointed to the apparent benefits to be derived from an incapacitated person having a close relative or a friend whom they themselves have nominated to stand up for their best interests when a decision of a life or death nature has to be taken. She has argued that an individual granting a power of attorney should, if he wishes, be able to nominate to act under such a power. The problem with this situation is that it is fraught with risk for the patient.
	Where the doctor and the attorney are in agreement about what should be done, there is no issue. The difficulty arises when they do not agree. The degree of transparency surrounding an attorney's decision does not have to be very great. An attorney purporting to act in a patient's best interest does not have to be seen to do very much beyond consulting himself. We have already debated how difficult it is to detect, let alone eliminate, conflicts of interest on the part of attorneys. Precisely because an attorney will typically be someone close to the patient, the risks of such conflicts will be greater, not less. The fact that the patient trusted the attorney enough to give them the power in the first place skirts around the point at issue.
	The situation that worries me is the one where that trust is misplaced. Are we really to imagine that a doctor confronted by an assertive and forceful attorney will have the strength of mind to stand his ground or to seek a ruling from the court? Sometimes he may, but I suggest that it will not be by any means routine or automatic. We are talking here about allowing an individual, who almost certainly will not have had any clinical training, to gainsay a doctor whose professional advice it is that a patient should be given life-sustaining treatment, including artificial nutrition and hydration.

Lord Goodhart: My Lords, I am grateful to the noble Earl. Could the power in the Bill not be of help to the doctor, who might find that he or she would prefer the decision to be taken by the attorney? After all, he is the person who knows the patient best. In many such cases would it not be something that a doctor might well find to be a positive assistance?

Earl Howe: My Lords, I agree that in many instances doctors will welcome the opportunity to consult with someone close to the patient. I take issue with the proposal that the decision on the refusal of treatment should rest exclusively with the attorney.
	Up until now the withdrawal of nutrition and hydration has been either a clinical decision, or in the case of PVS patients a decision for the courts. The Bill permits an attorney to decide upon the withdrawal or withholding of nutrition and hydration. I seriously question whether that is right in principle and I seriously question whether in practice the degree of risk to which it will give rise has been appropriately acknowledged by the Government.
	The Minister would have a stronger argument if an attorney were able to insist upon a patient being treated in a situation where a doctor wished to withhold or withdraw treatment, but an attorney will not be able to insist on treatment any more than the patient himself could if he had capacity. The power granted to the attorney under these provisions is either to consent to or to refuse the treatment which the doctor has proposed.
	It has been put to me that an attorney, by virtue of the power vested in him over life-sustaining treatment, would be able to exercise greater leverage over a doctor who wanted to withdraw treatment when the attorney did not. As the Bill stands and as the law stands, I simply do not think this is correct. It would be virtually automatic that an attorney would be consulted over the decision—and, as I say, I have no problem with that at all, especially where there is a choice of treatments or, indeed, non-treatment, any of which could be justified under the doctor's duty of care. In the last resort, if there is disagreement, it will surely be possible for an attorney to refer the best interests decision to the court. But I see nothing to be gained, other than a great deal of risk, from giving an attorney a legal veto over life-sustaining treatment for the reasons I have set out.
	This would be the first time in English law that an adult would be granted the power to give or refuse consent to treatment on behalf of another adult. For every day treatment decisions, that is one thing; but where the patient's life is at stake, I suggest it is a step too far. I beg to move.

Baroness Barker: My Lords, sadly, I take issue with the noble Earl, Lord Howe. I say "sadly" because, throughout the Bill, I have found his inputs into our discussions perhaps more valuable than those of anyone else for the reason that he was not a member of the Joint Committee which scrutinised the Bill. I have found the way in which he has analysed many of the arguments put forward in the Joint Committee to be a great test of the assumptions of many of the people who have been involved in this legislation for a long time. So it is with great regret that I take issue with him on this point.
	I do so for one principal reason. One of the many amendments brought forward by the Government related to equal treatment. It was a response to amendments brought forward at an earlier stage from these Benches. During the discussion on that amendment, I stated that I believed that the provisions surrounding equal treatment for people who have disabilities, who are old or who have specific conditions were perhaps some of the most fundamentally important provisions in the Bill.
	As someone who has supported the Bill as wholeheartedly as possible all the way through, I have throughout all our discussions and deliberations never ever discounted the fears that people with disabilities have about the legislation. The arguments were put forcefully to the House by the noble Baroness, Lady Chapman.
	Those of us who were involved in the Joint Committee discussions will remember the extremely powerful arguments put forward by Jane Campbell, a severely disabled lady, who wrote about going to hospital and willing herself not to sleep for the duration of being in hospital in order that she would not receive adverse treatment. Jane Campbell made one particular point very forcefully: that the one person she trusted above anyone else was her husband. Not doctors, not friends, not advocates; her husband.
	She had clearly done what has to be done under Clause 11(8)(a) as it stands at the moment. She had discussed in great detail with her husband, at a time when she had capacity, exactly what she wanted to happen. The clause states that subsection (7)(b), which relates to lasting powers of attorney,
	"does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect".
	I believe that means that it has to be in writing. So an attorney will have to have debated and discussed this matter with the person, and it will have to have been recorded in writing.
	As the noble Baroness, Lady Knight, said, we are talking about one of the most difficult and serious decisions that any person can make. It cannot be taken lightly. I therefore believe very strongly—and the noble Lord, Lord Pearson of Rannoch, may perhaps be surprised to hear me say this because we have not always agreed throughout the Bill about the balance that carers and relatives should have in these matters—that an attorney, a person chosen by someone, should be the person who makes this most serious of all decisions.
	I do not for one moment in any way question the motivation of the noble Earl, Lord Howe, but, just this once, I believe that the balance of the argument is perhaps against him. I am sorry, but I cannot support him on this occasion.

Lord Carter: My Lords, I understand entirely and recognise the sincerity with which the noble Earl, Lord Howe, has brought forward the amendment. He has drawn our attention to what could be a serious problem. However, I want to try to interpret the amendment by reference to the family situation I described on Report, where life-sustaining treatment was deliberately withheld so that a dearly-loved son could die peacefully at home, where his last hours were assisted by morphine.
	As I understand the amendment, if an LPA had been in existence and Amendment No. 3 was in the Bill, that decision would have been removed from the parents—although obviously they would have been consulted—and left to the doctors. It may well have been the same decision, but it would have been the doctor's decision and not that of the parents.
	In the same family, there was a possibility that an agonising decision might have been taken if their daughter was in a persistent vegetative state. Again, if an LPA had been in existence and Amendment No. 3 was in the Bill, that decision would have been removed from the parents and left to the doctors; and then, of course, eventually to the court.
	When we refer such cases to the court, which we do often, we have to remember that these are intensely agonising times for people and that it is a big step to take in such circumstances. In that family, I have no doubt that if the son and daughter had decided to have lasting powers of attorney they would certainly have wished their parents to be named and would have wanted them to take those decisions, in consultation with the doctors, and not just leave them to the doctors.
	This is the other side of the argument to the one presented by the noble Earl, Lord Howe, and should be taken into account in an attempt to find where the balance lies.

Baroness Finlay of Llandaff: My Lords, I have tried, as amendments have appeared, and when the Bill first came before your Lordships' House, to look at this in the context of a clinical scenario. I completely concur with the noble Baroness, Lady Barker, that the vast majority of patients feel very much more comfortable with their own family member, with whom they have often had endless discussions, going round this way and that and looking at "what if". I have spoken to Jane Campbell and I know that that is the way in which she considered all the scenarios with her husband and also with her sister, for whom she also felt a great deal of trust. I am also sadly aware, as a doctor, that a lot of patients do not feel a great deal of confidence in us as a profession at difficult times, nor in the NHS.
	However, there is another side to this: there are times when a clinician can feel that a family member may be taking a decision which is not in the best interests of the patient or pushing towards it. In those situations, the doctor will take advice from the Medical Defence Union. We speak about the GMC, but it is the Medical Defence Union that I phone up when I am uncertain and feel that I am in a corner. The Medical Defence Union will support you and will also be the legal adviser to your trust.
	There is no doubt that in the trusts where I work, where relatives wanted to shorten a life by refusing a treatment which I, as a clinician, felt should be prolonged because there was a chance of recovery, even though the relatives did not see it, I would be supported in eventually, if necessary, going to a court to be able to continue to treat that patient. There are very few times when clinicians feel that treatment should be continued and the family want to withdraw it. It is much more common that a family desperately want to continue treatment which the clinician knows is futile.
	I accept that the purpose of an amendment is to allow for those difficult and complex situations. But I have a concern that if we put the power back in the hands of the doctors rather than respecting the position of the attorney, we will fundamentally undermine the principle of patients being able to decide, in advance, in the event of their incapacity, what they would want when they have had time to discuss it in detail with a person they trust.
	I urge the House to think very carefully about the wording of the amendment. We speak a lot about doctors making decisions, but it is the family who have to live with their grief after somebody has died. It is the family who wake in the night and think about whether they made the right decision. I see many bereaved families in turmoil because of decisions which they were the tiniest bit worried might have been the wrong decisions. However, I am afraid that I do not see as many clinicians—although I see some—who wake in the night worrying over decisions. That is the nature of the profession; you move on to the next patient. You do your best for the patient in front of you, but it is the family who have to live afterwards in their grief.

Lord Alton of Liverpool: My Lords, I support the noble Earl, Lord Howe, who introduced the amendment at an earlier stage and has rightly returned us to it today. These are, as the noble Baroness, Lady Barker, implied, Solomon's judgments; they are difficult and complex questions. I am sure that my noble friend Lady Finlay is quite right that whatever decision we take, there will be agonising cases in the future where people will continue to grieve at length after the loss of a loved one and wonder whether they have taken the right decision. Whether an attorney or a doctor takes that decision, that will be the reality, whatever happens.
	The noble Lord, Lord Carter, was right to recall again the scenario that he placed before your Lordships at an earlier stage. The point about that is that under the current law, the decision in that case was able to be reached in consultation with the doctors, and the family's wishes were observed. So the noble Earl, Lord Howe, is asking for no more than upholding the status quo.
	The Bill allows the transfer of decision-making power to a third party proxy, the lasting attorney. The active decisions will then be made when the patient is mentally incapacitated and that may mean no more than unable to communicate a decision. That is set out in Clause 3(1)(d). The lasting attorney could thus make a decision in all sincerity and good faith to require the doctor to withdraw or withhold treatment from the patient, genuinely believing that the patient would have wanted that. The patient, however, may have changed his or her mind. Very well then, you will say—that is fine. But if the patient cannot communicate that change of mind, then he will be taken to "lack capacity", which may be only temporary. That is set out clearly in Clause 2(2).
	In that case, it will be the attorney's will that prevails, not the patient's will. That will, of course, undermine rather than enhance the patient's autonomy, the point made by the noble Baroness, Lady Barker. If the treatment is life-sustaining, however, the consequences will be irreversible. When the attorney requires the doctor to withdraw the life-sustaining treatment and the patient dies—even if the patient's incapacity is only temporary—it may be too late to see what the patient decides when he returns to capacity, for he may by then be dead.
	It is difficult to think of a more complete example of the undermining of a patient's autonomy. That is why I am troubled by the constant refrain that the Bill will somehow enhance the patient's autonomy. Here is an example of where it might do the very opposite.
	As we have been reminded, we must also consider the position of carers, doctors and nurses. The lasting attorney will be able to require—that is to say, compel—them to withdraw or withhold treatment. Now if that treatment is life-sustaining, the Bill will allow the lasting attorney to compel a doctor to preside over the ending of his patient's life by the withdrawal or withholding of that life-sustaining treatment. Let us not forget that what is ordinary treatment today can easily become life-sustaining.
	The Government withdrew the power to make refusal of life-sustaining treatments from the deputies and they were right to do so. The same must be done in respect of lasting attorneys, because the attorney's view may no longer be that of the patient, but the attorney will prevail if the patient cannot communicate, even temporarily. If the treatment is life-sustaining, the patient may die—in the case of withholding food and fluids, the patient will die—and patient autonomy will be fatally exploded. I do not believe that that should be permitted where the patient's life is at stake. Hence, such power should be withdrawn from the lasting attorney, which is why I support the amendment.

Lord Patten: My Lords, I strongly support the amendment in the name of my noble friend Lord Howe. He explained the reasons for it in his excellent speech a few moments ago. I think that my noble friend is hoping to guard against some extreme cases and make sure that there are no loopholes. This concerns a lot of people in the outside world to whom we must listen, as well as experts, to whom we must obviously also listen with due deference.
	Since the Bill has been produced, there has been a lot of concern. The Pro-Life All-Party Group—of which, for the avoidance of doubt, I am not a member—has expressed this concern. I suspect that, as the times alter, as the noble Lord, Lord Christopher, referred to in the last debate, and some of these issues such as euthanasia reach greater and greater salience, it may well seek to rename itself the all-party anti-death group. It has expressed concern that a decision by the donee of a lasting power of attorney will override the medical decision of the healthcare team. I would always wish the healthcare team to be important, not HR directors or social workers. I say that with respect to both professions, of course.
	I regret that there is no provision for a second independent medical opinion procedure in the case of disputes between the attorney and the doctor. There was tabled an amendment in Committee, as the Minister will remember, to introduce a requirement to seek a second medical opinion in the event of disputes. That was rejected by the Government, and I regret that. If they had not rejected it, we would not be having this debate this afternoon.
	As a result, disputes will need to be referred directly to the court. As my noble friend Lord Howe observed last week, how many medical professionals, when faced with a determined attorney with whom they disagree will have the time or inclination to petition the court? How many NHS trusts, as we heard in earlier debates, will be willing to fund expensive litigation? The excellent speech of my noble friend Lord Howe last week bears re-reading in Hansard.
	The evidence is worrying. I pick as my witness Professor Sheila McLean, a member of the Voluntary Euthanasia Society and a distinguished academic at Glasgow University. The professor said the following about proxy decision makers when giving evidence to the Justice Committee of the Scottish Parliament in May 1999:
	"All the evidence is that proxy decision makers get it wrong more often than they get it right, but that they do so in good faith . . . We know that proxy decision makers are pretty inaccurate. Most of the research on this subject has been done in the United States. If the person who has appointed the proxy is asked what he wants the proxy to say, and then the proxy is asked what they think that the person would want them to do, the evidence is that there is very little congruence between the two views".
	That is research-based evidence. I am a strong exponent of research-based evidence in making up our mind on the issues. So I find the points that my noble friend has made very powerful.
	I end on this note. The attorney or proxy decision-maker will have the power to refuse medically advised treatment, yet the research indicates that that may not be making the correct decision. They are life and death decisions. The attorney may have power also over a patient's financial affairs. Those are extreme examples, but the House has to guard against extreme examples. There may well be circumstances in which the family will benefit from a patient's death. Under the Bill, the attorney would have the power to refuse treatment and so, perhaps, hasten that patient's death. It may not happen very often and it may only happen several years down the track, but you can bet that it will happen under the provisions of this Bill. This is a pressing conflict of interest that is not addressed by the Bill. My noble friend Lord Howe was absolutely right when he said in his excellent speech that the issue was "fraught with risk". That is why I support so strongly his amendment.

Lord Christopher: My Lords, does the American research to which the noble Lord referred look also into the extent of the knowledge of the patient of the situation and the knowledge of the proxies of the situation?

Lord Patten: My Lords, I am afraid that I cannot answer the noble Lord, Lord Christopher, on that point, but I will look into it. As I used to say when I clutched the edge of a Dispatch Box, I will write to the noble Lord.

Baroness Chapman: My Lords, the amendment gives me great cause for concern. Throughout our debates, I have argued for a person's whole life to be considered. If the amendment is accepted, end-of-life decisions would become medical decisions, based on the person's condition and nothing else. That would jeopardise the lives of many disabled people.
	I have been very vocal about my worries about the Bill. Having listened to the debates in this place and following a meeting with the noble Baroness, Lady Ashton, I believe that my remaining concerns can be addressed in the codes of practice and other guidelines.
	I therefore hope that I can be involved in drawing up the codes of practice to ensure that the concerns that have been voiced by me and others in the House are incorporated. It is essential that all that we have been promised is included to protect the people who fall within the scope of the Bill and any one of us who at a later date could lose capacity.
	Provided that the protection is there, the Bill will protect many people who are at present unprotected. In many cases, this is the patient; in some cases, the doctor. The Bill includes many amendments made in this House. I thank the Minister for her time and patience.

Baroness Ashton of Upholland: My Lords, I begin by echoing the sentiments of the noble Baroness, Lady Barker, without embarrassing the noble Earl, Lord Howe. Sometimes, Members of the Opposition or those who sit on other Benches get credit only when they win votes, but we should not be in any doubt that the noble Earl has played a significant part in ensuring that the Bill has been amended appropriately, and I am very grateful to him.
	I am grateful also to the noble Baroness, Lady Chapman, for her time, energy and patience in helping me think through some of the issues in the Bill. It would give me enormous pleasure if she were to participate in our work on the code of practice. I look forward to that very much. Her participation would be invaluable.
	I begin by saying how we got here. We have debated this important amendment. I accept that it is important, and I am grateful to the noble Earl for tabling it again. He and I agreed on Report that we would reflect on the issue further. I have done that too.
	The amendment is important for two reasons. First, the noble Earl has rightly focused on the important change to the law in the Bill. Under the current law, a parent can give or refuse consent to treatment on behalf of their child, but no one can do that for an adult who lacks capacity. Only the doctor can decide whether to give treatment to such an adult, or, in exceptional cases which we have discussed in your Lordships' House, the court. When the Bill becomes law, people can, if they choose, give someone they love and trust the power to give or refuse consent to treatment when they lack capacity to do so themselves.
	The second reason why the amendment is important is that it is at the heart of the reason why the Law Commission and others have wanted this Bill for 15 years. It is a very welcome change. Most people are shocked to discover that their so-called next of kin—husband, adult son or daughter, for example—would have absolutely no rights to make decisions for them if they were incapacitated. That is why, some 15 years ago, the Law Commission proposed the idea of a lasting power of attorney for health. In all the years of consultation since then, the ability of people to appoint a loved one to give or refuse consent to life-sustaining treatment, with all the safeguards that I outlined on Report, has been fully supported.
	Organisations such as Age Concern and the Alzheimer's Society strongly believe that the vulnerable, ill people whom they represent will be strongly reassured that this choice exists, as they contemplate future incapacity. Some people will decide to take the option and some will not, but they very much want that choice to be available. Both organisations oppose the noble Earl's amendment. The Alzheimer's Society has said that it,
	"opposes any moves to deny attorneys the right to make decisions about withholding and withdrawing life sustaining treatment. It is right that a person nominated . . . through an LPA . . . should not be restricted in their ability to act in the best interests of P. Someone making an LPA will have to give clear instructions that the LPA applies to decision-making about life sustaining treatment, for the person using the LPA to have that . . . power. This requirement is a strong safeguard against abuse".
	I agree with the noble Earl that the clause and his amendment to it are important areas for debate. I respect his views. I have learnt from the discussions that we have had. I can assure him that I have thought carefully about the points that he has made in your Lordships' House and in meetings with me. However, I simply cannot agree to the amendment—partly because it is undesirable; partly because I think that it is unnecessary. I shall briefly walk your Lordships through the six reasons for my opinion.
	First, it would weaken the abilities of families to speak up for their loved one. We have heard many moving stories in our debates on the Bill. That is why the Bill is so important and why I am proud to be taking it through the House on behalf of the Government. A frequent theme in those stories is the difficulty that people who lack capacity or have disabilities can experience in making their voice heard. I remember well the noble Baroness, Lady Chapman, speaking about that. She spoke of her family's love and determination to ensure that her voice was heard when doctors were unwilling to listen, preferring instead to focus on her disabilities.
	If they had experienced such a situation, someone could well decide that they wanted an attorney—someone whom they love and trust—to take best-interests decisions about treatment, including life-sustaining treatment, if they lost capacity. They might decide not to rely on a doctor who might be unable, or unwilling, to take the time to hear that unique voice of the patient. I do not know what the noble Baroness would choose for herself, but I want her, and all of us, to have the option.
	Another theme of the stories that we have heard is the devotion of families to their loved ones—a love that pushes through the most distressing and relentlessly difficult circumstances. I was struck by this in listening to the noble Lord, Lord Pearson, for example, and I was profoundly moved by the account of my noble friend Lord Carter of the heartbreaking choices to be made by families who lose children in adulthood. As my noble friend said, the decision was ultimately made in his case between the doctor and the family at the same time—but a doctor could, under current law, have overruled such a request from the family. An attorney with the authority to make life-sustaining treatment decisions—assuming of course that the choice is clinically appropriate, and in the person's best interests, which is a matter included in the Bill—could decide that the person should spend those last, vital few days at home in familiar surroundings with the people whom they love. Again, we cannot say whether an attorney would have been chosen in these situations. But that highlights the circumstances faced by many thousands of families every day. If someone feels that it is right for them and their loved ones to appoint an attorney while they have capacity, who will, they have agreed, be able to take decisions on life-sustaining treatment, who are we to put ourselves in their shoes and decide that we should remove that option from them?
	The second reason is that it would put someone chosen as an attorney in a weaker position than a deputy appointed by the court. As noble Lords said, we listened to concerns about deputies' involvement and we concluded that we should remove the power of court-appointed deputies to refuse life-sustaining treatment. That amendment was welcomed by the noble Earl, Lord Howe, and other noble Lords at last week's Report stage. Deputies are not chosen by the person who lacks capacity, so we decided to listen to your Lordships' House and to be cautious. But this amendment is different. Not only does it remove the power of someone chosen by the person when he or she has capacity, to refuse consent to life-sustaining treatment, as we have done with deputies, but it removes the power of that loved one to give consent to life-sustaining treatment. This amendment diminishes the rights of the person who lacks capacity, in a Bill where everywhere else we have sought to enhance those rights. It cannot be correct that someone appointed by the court can have more say in life and death decisions than someone chosen by the individual.
	The third reason is that healthcare attorneys will be welcomed by the medical profession. We know from our many discussions with the GMC, BMA and other stakeholders, that doctors fully support giving power to the attorney, if that was what the patient decided when they had capacity, to make the full range of treatment decisions. As the noble Baroness, Lady Finlay, said, doctors can find it very difficult to decide what treatment is in a patient's best interests when they do not know much about the patient, or when a number of relatives give conflicting views. If someone has planned ahead and thought carefully about who they would like to give consent on their behalf, that gives confidence to doctors that they are treating the individual according to his or her best interests. They believe that lasting power of attorney provide a way to make better treatment decisions for people at fundamental points in their lives.
	The fourth point is that the attorney has this power only if it is explicit and written in the lasting power of attorney. There can be no mistake about whether the donor of the lasting power of attorney really intended the attorney to make decisions about life-sustaining treatment; and the donor will have to discuss that aspect of the lasting power of attorney with the prospective attorney. I know that some people are concerned that people will not want to give their loved ones such an onerous duty as to make life or death decisions in what will undoubtedly be very distressing circumstances for them personally. That is a valid point, but we have to remember that they do not have to give them this power. It is not automatic. The fact that it needs to be an explicit provision in the lasting power of attorney must cause people to discuss it, and sign up only if both parties are content with what it includes and what it will involve. We shall ensure that there is guidance and information to help people be absolutely clear about that process.
	Fifthly, attorneys do not make clinical decisions or decisions about medical best interests. I know that there have been concerns that it is not safe for attorneys to take over the medical decision-making role of the doctor. I can completely reassure your Lordships' House on that point. An attorney has only the same power as a patient who has capacity, so he can only give or refuse consent to treatment; he cannot take the medical decision. The doctor continues to have the professional duty of care to his patient and can be sued in negligence for breaching that duty.
	In any given treatment decision, the doctor must make clinical judgments about which treatments of those available for a given condition would be accepted as proper by a responsible body of professional medical opinion. That is the so-called Bolam test. In many situations, there will be a range of medically appropriate options that are what might be called Bolam compliant. It is clear from case law that doctors have a duty to advise patients of those alternative treatments when seeking consent. If the patient lacks capacity to make a decision on the basis of the advice, the doctor must then himself decide which of the possible treatment options would be in their best interests.
	Under this Bill, patients have an attorney, if they want one. Then it will be the attorney's role to decide which of the treatment options is in the patient's best interests; but it will not be the attorney's role to take the medical decision of which treatment options to offer in the first place. I shall give a very short example. A doctor may believe that providing and withholding artificial nutrition and hydration in the last few days of a person's life are both Bolam-compliant treatment decisions. He may have doubts about whether the burdens outweigh the benefits of the treatment but the attorney knows that the patient, perhaps because of a very strong religious commitment, would definitely wish to receive artificial nutrition and hydration and believes that the option to give ANH is in the patient's best interests. The attorney ensures that treatment is continued for as long as it is Bolam compliant—in other words, that clinically it is not detrimental to the individual and is in the person's best interests. That would be removed by this amendment.
	Sixthly, and finally, doctors must go to court if they disagree with attorney's assessment of best interests. We know that there are concerns about what happens when a doctor does not feel that the attorney is genuinely acting in the patient's best interests. The answer is very straightforward: if the issue cannot be resolved, the doctors must seek the guidance from the Court of Protection to ensure that a decision in the best interests of the patient is reached. We know that that works, because it is exactly the same as the sharing of responsibility between clinicians and parents when parents are giving or refusing consent on behalf of their children. One example, which I gave at Report and shall not repeat, is the case of baby Charlotte Wyatt. Noble Lords have watched and listened to that story, which has very difficult and heartbreaking circumstances, in which the court made a decision.
	In fact, if a doctor believes that an attorney is making a decision that is not in the person's best interests, they may be liable in negligence if they fail to go to court. Clause 6(7) enables doctors to treat the patient, without fear of liability, while they seek guidance from the court. In the case of Glass before the European Court of Human Rights in 2004, the court held that doctors were acting contrary to the ECHR in failing to going to court when they disagreed with a mother's refusal of consent to treatment on behalf of her son.
	I always try to listen very carefully in the course of our debates, and I am happy to say two things that are particularly relevant to the noble Lord, Lord Patten. First, I am very happy to make a clear commitment in the code of practice that when a doctor believes that an attorney is making a decision contrary to a person's best interests, the doctor should seek a second medical opinion and discuss further with the attorney. The noble Lord, Lord Patten, said that we would not be having this debate if I had accepted the amendment in Committee. I cannot go so far as to accept the amendment but I commit the code of practice to having the measure within it. I believe that is the right and proper place for it to be. I hope that the noble Lord will welcome that.
	Secondly, as regards the code of practice, if agreement cannot be reached, the doctor may apply to the Court of Protection, and life-sustaining treatment, or treatment necessary to prevent a serious deterioration in the person's condition, should be provided pending an outcome from the court. I commit that that will also be in the code of practice, which is where it should be.
	As I said at the beginning, I understand why the noble Earl has brought this amendment. However, some of the concerns that underlie the amendment are unfounded. Lasting powers of attorney will make decisions better and safer than now. The amendment would strike out an important choice that some people will want to make in the context of loving and supportive family relationships. Indeed, it would diminish the role of loved ones in comparison with a deputy appointed by the court, which cannot be right. Each person's choice will be different. However, each person's choice should be their own, taken to prepare for the infinite variety of challenges and sorrows that each family faces, and to fit the way in which each family chooses to meet them. We will help and guide people through these choices, but we should not take these choices away. I hope that the noble Earl will withdraw the amendment.

Earl Howe: My Lords, I am very grateful to all noble Lords who have taken part in this debate. We have heard arguments on both sides expressed with equal force and equal conviction. I very much respect the views of those who have argued against the amendment. I would only say that my amendment would not remove the ability of a close relative or friend to be consulted on what constitutes the best interests of an incapacitated patient. Indeed, it would be the duty of a doctor who did not know the patient to consult an attorney or close relative in making his decision. But the decision on treatment would rest with the doctor.
	I have listened very carefully to the noble Baroness and I very much welcome the undertakings she gave with regard to the code of practice. Those are helpful undertakings. On the other hand, I hope she will understand that this is an issue of very considerable importance regarding what appears or does not appear on the face of the Bill. I feel on balance—I hope that she will forgive me as she has been a model of courtesy and helpfulness throughout the passage of this Bill—that this is too important an issue not to be resolved by testing the opinion of the House.

On Question, Whether the said amendment (No. 3) shall be agreed to?
	Their Lordships divided: Contents, 18; Not-Contents, 118.

Resolved in the negative, and amendment disagreed to accordingly.
	Clause 32 [Consulting carers etc.]:

Baroness Knight of Collingtree: moved Amendment No. 4:
	Page 19, line 10, at end insert—
	"(c) has no connection with R"

Baroness Knight of Collingtree: My Lords, I have tried hard to assess the responses that I had to an earlier amendment on the subject. There was confusion at that time, because two amendments were debated at the same time. The only real link between them was that they both referred to the conditions on which research could be carried out. However, they made two completely different points and were related to two different clauses.
	Since that debate, I have tried to unravel the responses that I received, and I do not seek to raise again my original attempt to give extra protection for patients by changing "and" to "or" in Clause 31. I accept the points made against that; I listen most carefully and try to accept things when I can. However, after long consideration of the responses to my original amendment—then Amendment No. 62—I cannot accept that they covered my arguments at all. With a slight alteration, I have tabled Amendment No. 4.
	I suggest that a paragraph (c) be inserted into Clause 32. The clause covers the rules for a researcher seeking to research or experiment on a subject and must be made watertight. The Bill must make it clear that the researcher cannot use a friend or relative to okay the research, which might be of great potential pecuniary or other advantage to the researcher. We are talking about big bucks. The research could be a winner, particularly if the researcher was a member of the staff of a pharmaceutical company or something of that kind. We are talking about the possibility of holidays in the Bahamas, Rolls Royce cars and diamonds for the wife. I am determined that we must be certain that those who consult and give the researcher the go-ahead must not have any link with him or her.
	As I read and reread what the noble Baroness, Lady Andrews, said in response to my earlier effort, I am far from convinced, although I withdrew the amendments at the time. I really cannot see how ensuring that a person to be consulted for a go-ahead should not be friend or relative of the researcher would make research impossible. I was told that at the time. They could not ensure that the link would not be possible, because that would make research impossible. I find it difficult to see how that objection could be upheld. I cannot see, with nothing in the Bill to ensure that a researcher does not choose a consultee who is, as it were, on his side, that the existence of an ethics committee—as was suggested—would overcome the danger. I cannot see how my suggested insertion could wreck the Bill.
	On 17 March, the noble Baroness, Lady Andrews, speaking against my amendment said that there would be guidance coming down like a beam of sunshine from a benevolent power far above us—at least coming via the Secretary of State—that would include a connection between the researcher and the research, on which there would safely be consultations. I am sorry, but I find that too vague. We have no idea what the guidance would be, what consultations would take place or with whom, nor do we know anything about the timescale before any of this could take place. I suggest to noble Lords that we are being asked to take an awful lot on trust.
	The noble Baroness continued:
	"we intend to ensure that healthcare providers . . . make arrangements . . . to identify a panel of people who could be available to act."—[Official Report, 17/3/05; col. 1515.]
	She meant that they would act as consultees. None of that is clear. Where will such people be found? Will they be paid? How much will they be paid? From where will the funds to pay them come? I do not know of a hospital which has spare cash to fritter around on people of that kind. Will there be a limit on the number of cases that such people could take on at any given time? What is the training that we are told they will have to undergo? Who will pay for that, how long will it last and what will it consist of?
	Where are all the social workers, NHS employees or clinical staff or members of the board of the trust of the hospital? All were mentioned by the noble Baroness. Where are all the social workers who have so much spare time on their hands that they would be consulted or could give the time to be consulted? Every social worker that I know is rushed off his or her feet. All of them complain to me that they have far too many cases already. Pushing more work on them would not be acceptable. Time and again there have been cases in the newspapers where disaster has occurred because, it is said, the social worker was so busy and had so many other cases on his or her desk that they had no time to deal with that one properly. Yet, apparently, somewhere there is a list of people who will be able to spare time for this. I have never met any NHS employees or clinical staff who speak about having time hanging on their hands.
	Several of your Lordships who spoke in the previous debate expressed agreement with my principle that those consulted by the researcher should not be friends or relations of the researcher. I am grateful to my noble friends Lord Patten and Lord Alton. I was also interested that the noble Lord, Lord Turnberg, clearly understood what I was trying to do and was not out of sympathy with it.
	There is no doubt in my mind that it would be wrong to permit a researcher to nominate his wife, girlfriend, cousin or uncle or a close friend to help him to carry out his desired research. Yet, so far, the Government have refused to allow an amendment which would enable my proposed new subsection to be inserted into the Bill.
	I say with the greatest respect that no valid argument has been made against my suggestion, although the rule should certainly be made clear in the Bill. In the light of that, in all conscience, I am bound to raise the matter again. I beg to move.

Lord Alton of Liverpool: My Lords, I rise briefly to support the amendment standing in the name of the noble Baroness, Lady Knight, as I did at an earlier stage. Members of your Lordships' House will recall that, when the amendment was tabled on the previous occasion, it was more widely drawn. There was some concern that it included the phrase "in any circumstances whatsoever". I think that the noble Baroness, Lady Andrews, was right to say that that would cause a number of problems in interpreting the amendment.
	The noble Baroness, Lady Knight, has done us a service in taking away the amendment and drawing it more tightly. She has also provided us with an amendment that is entirely compatible with the preceding paragraphs in Clause 32(3) on page 19 of the Bill. Paragraph (a) states that the person is,
	"prepared to be consulted by R under this section, but",
	under paragraph (b), that he,
	"has no connection with the project".
	If the noble Baroness's amendment were accepted, the subsection would go on to say that the person,
	"has no connection with R".
	I think that that is entirely consistent with the way in which the Bill is phrased, and it would add one more safety clause to the Bill—one that I would personally welcome.
	As this is the only opportunity to say anything further on the research provisions in the Bill, and as this is germane to the amendment, I thank the noble Baroness, Lady Andrews, for her letter of 24 March. It responds to a point raised during our Report stage, when I asked about significant discrepancies that might arise between the research provisions in the Bill and the Council of Europe's convention on human rights and biomedicine. I was extremely grateful to the Minister for setting out those points and for copying them to other noble Lords who had taken part in the debate. Perhaps she could arrange for a copy of the letter to be placed in the Library so that others who might be interested in this issue are able to read it.

Lord Turnberg: My Lords, I have to apologise to the noble Baroness, Lady Knight, for always seeming to speak against her amendments. However, I do so with some humility because, on the previous occasion that we debated this amendment, I agreed with the principle behind it and I still do.
	I think it is right that someone who has some direct close connection with R should not be the person finally to give permission for the research to be undertaken. I accept that entirely. However, as I see it, the problem with the amendment is that a person "having no connection with R" could apply to anyone on the staff of the hospital, anyone on the staff of the medical school and anyone in a relationship of any kind with R or even anyone who knows R. It would be extremely difficult to find someone who did not know R in the environment in which permission was being sought. So I do not think that the amendment is workable. In fact, it would prevent anyone doing research in the situation that we are talking about—that is, the emergency situation.
	Subsection (3)(b) states:
	"has no connection with the project".
	That would include anyone who had a pecuniary interest in ensuring that the research was carried out—that is, someone who would make some money or profit from it. I think that that is covered by the words "no connection with the project". That, at least, would get round the problem of the person giving the permission not even having to know the person doing the research.

Baroness Knight of Collingtree: My Lords, before the noble Lord sits down, I am very grateful because he always listens most courteously to what I have to say. I cannot quite link up the notion that if the researcher must have no connection with the consultee, he might be someone who works in the same hospital. Could it not cause a difficulty under Clause 32(3)(b) if the patient is in the same hospital as the project, as the noble Lord specifically mentioned? I cannot see that I am so wrong in tabling this amendment inserting paragraph (c). If there is a difficulty, and I do not accept that there necessarily is, why does it not apply to paragraph (b)?

Lord Turnberg: My Lords, the difficulty does not apply to Clause 32(3)(b) because a person can quite easily be in a hospital, not know anything about a research project in the same hospital, and still know the researcher. That would be entirely reasonable.

Lord Patten: My Lords, I rise to agree with the noble Lord, Lord Turnberg, in his support of my noble friend's underlying principles. However, I respectfully disagree with his dissent from my noble friend's excellent redrafted amendment. I think it is crystal-clear and in tip-top shape. I do not think that it gets in the way of pukka research in any way. I support my noble friend.

Baroness Andrews: My Lords, I am grateful to the noble Baroness for giving us another opportunity to explore this issue and for the beam of light that she has shed on it. In earlier stages of the Bill, we had a good debate on research and I am very glad that we were reconciled on Amendment No. 60. But the noble Baroness has done the House a service by raising issues about the connections between people involved in research projects and the safeguards about who speaks for them and represents them.
	I was impressed that she recast her amendment in a more specific manner, as the noble Lord, Lord Alton, noted. I wish that I could say that it satisfies our concerns, but it does not. I hope that I can convince her of why. I shall also take the opportunity to explain in more detail why we believe that the statutory guidance will do the job that she wants.
	I shall start by saying that the issue she has raised is extremely important and it is right that we should consider it in detail. We must be as secure as possible that the interests of the people involved are being served. I promised that we would reflect. I take on board the worry that there might be a mendacious researcher who would be able to nominate a compliant friend or family member in order to enrol an unbefriended person in research. We looked very hard at what she was saying. We looked at different ways in which we could express this and flesh it out so that it would be clear to noble Lords and to researchers in the field.
	Having considered that, I have concluded in all sincerity, and with the best consultation and advice, that we are best advised to strengthen the statutory guidance rather than to attempt to resolve the matter on the face of the Bill.
	I shall explain why. I shall briefly offer three valid reasons that have led us to this conclusion. The primary reason is that the term "no connection with R" is extremely broad and difficult to interpret. I take the point made by my noble friend Lord Turnberg and shall return to it with an example in a minute. It is not only difficult to interpret the term consistently and satisfactorily in legislation, which would cause problems, but it might also have the perverse effect of excluding a range of individuals who would be appropriate consultees for the people involved.
	The second reason is that it is important that researchers are clear about what they have to do to comply with the Bill and about all the safeguards that we have built into it. Not only that, but the Bill runs alongside the clinical trials regulations which govern research into new medicines and have been in force for some time. The wide scope of the Bill and the narrower scope of the regulations and the complex relationships between different health organisations and care organisations, which are involved in research provisions for the first time, must be aligned. It is far better to use statutory guidelines.
	The third point is again about the safeguards. The safeguards are not only those contained in the Bill and bound by it. In Clause 32 we have the requirement that the researcher must take steps to identify someone who cares for the person, except in a professional capacity, and who is willing to be consulted about the person's participation in an approved research project.
	If that is not possible because carers are genuinely unwilling or unable to do this—there may be such cases—or the person has no eligible carers, the researcher must nominate a third party unconnected with the research who is willing to act as a consultee. That person must be identified in accordance with statutory guidance to be issued by the Secretary of State and the National Assembly for Wales.
	One thing I should say to the noble Baroness, which I may not have said on Report, is that if it is not possible to identify a suitable consultee, the assumption must always be that the person is not enrolled on the project. In any event, Clause 31(7) requires that the arrangements regarding consultation with a carer or a third party have to be acceptable to the research ethics committee. We had a long discussion at both stages of the Bill about how scrupulous the RECs are in carrying out their range of duties.
	The term "connected" is very wide. Putting it in the Bill would make it extremely difficult to interpret. In the broad sense, what precisely is meant by having "no connection"? As the noble Lord, Lord Turnberg, said, it could be interpreted as someone with no professional or financial connection by virtue of working in the same organisation or same professional groups or belonging to the same professional society. But it could also extend to living in the same street, having a passing acquaintance or worshiping in the same church.
	I appreciate that the noble Baroness said that she wanted to make the provision watertight, but the phrase does not do that. It is simply too broad. If researchers do not know how to interpret it, they will be confused and err on the side of caution. They may not feel able to approach someone they know and respect, perhaps a professional or social contact, who would be a suitable person. That may have the opposite effect to the one that is intended.
	Let us say that a researcher with strong religious beliefs is involved in research with elderly patients with dementia, looking at the development of dementia in relation to brain development, using CAT scans. The researcher may know that the hospital's visiting chaplain has been appointed to the panel of third-party consultees and that he occasionally leads services. However, some of the potential research participants may have been the chaplain's parishioners. He may know of their previous wishes and feelings. Let us say that the researcher decides to ask the chaplain whether he would be willing to be nominated to the REC as the third-party consultee for any relative or unpaid carer who is willing to be consulted. Under the amendment, he would not be able to do so. The chaplain could not be said to have "no connection" to the researcher. The Bill, as it stands, would allow him to do it. We have to be careful of that type of case. Interpretation is the first problem.
	The second problem is that we have to ensure that researchers are clear about what they have to do in relation to the Bill and to the related clinical trial regulations. We have to be pragmatic and sensible. The statutory guidance procedures allow us to align and to create a simple and effective mechanism that is well understood by researchers as we cannot actually go into the detail.
	We have looked at the clinical trials model as a basis for the Bill. It is constructed in a narrower way which reflects the more limited scope of medicines trials. The regulations broadly say that if a "legal representative" cannot be found among P's next of kin, then the researcher must identify,
	"a person, other than a person connected with the conduct of the clinical trial, who is . . . a person nominated by the relevant health care provider".
	That definition has been drawn much more narrowly. The person should not work for the researcher or sponsor, or be supervised by the researcher. It does not say that the person cannot know or otherwise be connected with them. So, we cannot use that model because it is too narrow.
	I shall explain why we need flexible regulations. We will prepare and consult. The noble Baroness asked about consultation, which is extremely important. We will consult on guidance on the interpretation of third-party consultees under Clause 32(3) and on the legal representation under Schedule 1 to the clinical trials regulations. That is the only way to align the different legal requirements into a single system of appropriately trained independent persons who can advise on enrolling people under the statutory frameworks. Its inclusion in regulations enables us to bring those two sets of requirements together in a fit and proper way that helps everybody involved.
	The Bill also covers a wider range of health and social care research. We cannot simply require that the consultee be appointed by the healthcare provider; we must take into account the fact that some people involved in research projects may be in a care home funded by a local authority or cared for at home. We want the researcher to have the flexibility to use the appropriate third-party consultee, nominated by either his employer—for example, a trust or university—or another organisation, acting on behalf of the relevant local authority. Again, we are looking at the flexibility offered by statutory guidance and regulations.
	We will have to look at those complex issues in more detail in the statutory guidance. The noble Baroness, Lady Knight, asked about that guidance. I am very happy to give her as much detail as we have available and certainly to keep in touch as the implementation programme progresses. I assure the House that the statutory guidance will say that the care organisations involved, whether trusts or local authorities, should work with the relevant research ethics committee to establish a suitable panel of people who can act as third-party consultees. That panel will be the responsibility of each trust or social care organisation and will be governed by the research governance framework. It will be set within a proper framework.
	We have yet to decide on remuneration; it depends on who will be the employing party. Payment or other expenses will be part of the overheads charged to researchers or sponsors, so it will be built into the research programme.
	The noble Baroness asked what sort of people would be involved. They could be existing employees, such as other clinical staff not connected with the trial, or social workers. I take the point about social workers' time pressures, but in this context we might be looking at hospital-based social workers, who may have other sorts of responsibilities and would take an interest in these issues. So the picture may not be so gloomy. There might also be non-executive members of the trust board and hospital chaplains. There will be a role for the independent mental capacity advocate. The REC will also have a role in ensuring that training is available.
	I imagine that the training will include the sort of information and advice that is available to research ethics committee staff—the context of research, how it is managed and the social factors regarding the people coming forward.
	The noble Baroness asked about the timescale for guidance. It will be issued after we have amended the clinical trials regulations. We aim to consult towards the end of the year. There is usually a three-month consultation period, in which we will ensure the noble Baroness is involved.
	The third point is that all that will be backed up by the code of practice. It is extremely important that the safety and security guidance for researchers be made clear. There will be more information in the code of practice. Taking the advice of the noble Earl, Lord Howe, we amended the Bill on Report to require researchers also to have regard to the code of practice. It emphasises the statutory guidance from the appropriate authority under Clause 32(3) and will highlight the role of the research ethics committee.
	I hope that noble Lords will understand that clinical researchers are also bound by a very strict research governance framework for health and social care; for example, the professional codes of the General Medical Council. They contain general safeguards against conflicts of interest and other forms of professional misconduct.
	Those three points—interpretation, what we need to achieve to bring our provisions into line with each other for safety and security in the way that research is conducted across a very complex set of relationships and agencies, and the wider safety framework—will, I hope, reassure the noble Baroness, particularly in the light of what I have said about the detail that will be in the statutory guidance and the code of practice.
	In response to the question asked by the noble Lord, Lord Alton, we will be pleased to put the letter of 24 March in the Library. I was very pleased that he was pleased that we had met some of his concerns. With those assurances, I hope that the noble Baroness will not be too disappointed and will feel that she can withdraw her amendment.

Baroness Knight of Collingtree: My Lords, the noble Baroness is such a kind lady. She is painstaking and takes great care to listen to all that is said and to answer all of the points raised. In spite of all that she has said, I must put on record that what rather worries me still is that we are talking here about a person that the researcher nominates, not someone that a panel has nominated. Nothing that I have heard seems to prevent the researcher, who has to find his own consultee, asking someone with a close connection—his wife, girlfriend or one of the people I mentioned. I am not completely happy with that.
	However, this is a day when, if my friends are not exactly receiving Maundy money from Her Majesty, they certainly have all gone off for the Easter holidays. Therefore, I do not intend to ask for a Division. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 42 [Codes of practice]:

Baroness Andrews: moved Amendment No. 5:
	Page 25, line 14, leave out from first "research" to end of line 16 and insert "in reliance on any provision made by or under this Act (and otherwise with respect to sections 30 to 34),"

Baroness Andrews: My Lords, I can be very brief on these amendments, which are technical and make a correction from Report stage. Noble Lords will be aware that at Report stage the Government tabled Amendments Nos. 97 and 99, which have the effect of adding researchers to the people for whom the code will provide guidance and who will have a duty to have regard to it.
	Those amendments at Report stage referred to research,
	"approved for the purposes of this Act (and otherwise with respect to the provisions of sections 30 to 33)".
	However, we introduced a new clause—Clause 34, as amended following Report stage—which provides a transitional regulation-making power to cover ongoing research.
	The amendments before the House today are technical amendments which are needed to ensure that researchers who are involved in projects carried out in accordance with regulations permitted by Clause 34 also have regard to the code. Clause 34 provides for transitional flexibility for research projects that enrolled people with capacity before the commencement of Section 30, but where a person loses capacity to consent to take part in the research. As I have said, we believe that it is very important that researchers in that situation also have a duty to have regard to the code and that the Lord Chancellor must cover such research in the code of practice.
	It is not a matter simply of changing the cross reference from "Clauses 30 to 33" to "Clauses 30 to 34". Clause 42 refers to a project approved for the purposes of this Act, which links back to Clause 31. Projects under Clause 34 will not have been approved in accordance with Clause 31, as the research will have started prior to the commencement of the Mental Capacity Act—as we hope the Bill will become. The research will have to meet the requirements of the regulations made under Clause 34. The amendments therefore refer to,
	"any provision made by or under this Act (and otherwise with respect to Sections 30 to 34)".
	I beg to move.

On Question, amendment agreed to.

Baroness Andrews: moved Amendment No. 6:
	Page 25, line 30, leave out from first "research" to end of line 31 and insert "in reliance on any provision made by or under this Act (see sections 30 to 34),"
	On Question, amendment agreed to.

Lord Kingsland: moved Amendment No. 7:
	After Clause 58, insert the following new clause—
	"PUBLIC GUARDIAN BOARD
	(1) There is to be a body, to be known as the Public Guardian Board.
	(2) The Board's duty is to scrutinise and review the way in which the Public Guardian discharges his functions and to make such recommendations to the Lord Chancellor about that matter as it thinks appropriate.
	(3) The Lord Chancellor must, in discharging his functions under sections 57 and 58, give due consideration to recommendations made by the Board.
	(4) The members of the Board are to be appointed by the Lord Chancellor.
	(5) The Board must have—
	(a) at least one member who is a judge of the court, and
	(b) at least four members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the Public Guardian.
	(6) The Lord Chancellor may by regulations make provision as to—
	(a) the appointment of members of the Board (and, in particular, the procedures to be followed in connection with appointments);
	(b) the selection of one of the members to be the chairman;
	(c) the term of office of the chairman and members;
	(d) their resignation, suspension or removal;
	(e) the procedure of the Board (including quorum);
	(f) the validation of proceedings in the event of a vacancy among the members or a defect in the appointment of a member.
	(7) Subject to any provision made in reliance on subsection (6)(c) or (d), a person is to hold and vacate office as a member of the Board in accordance with the terms of the instrument appointing him.
	(8) The Lord Chancellor may make such payments to or in respect of members of the Board by way of reimbursement of expenses, allowances and remuneration as he may determine.
	(9) The Board must make an annual report to the Lord Chancellor about the discharge of its functions."

Lord Kingsland: My Lords, a version of this amendment was first tabled in Committee under the title,
	"The Board of Public Guardianship Supervision".
	Its origin was a view taken by the Opposition that the Lord Chancellor's Department had neither the resources nor, frankly, the sense of political priorities to scrutinise the work of the old Public Guardian Office in the way that it ought to have been scrutinised. We, therefore, sought to place between the Lord Chancellor and the new Public Guardian a board of control which, on the one hand, would be close to what the Public Guardian was doing, yet, on the other, sufficiently close to the Lord Chancellor for him to take notice of its views.
	I was extremely fortunate to find opposite me at the Government Dispatch Box the noble Baroness, Lady Ashton of Upholland, who was most sympathetic to the concept we were advancing—although she was concerned about some of the details of the original amendment. So between the Committee stage and Third Reading I have had two meetings with the noble Baroness and her officials during which we have managed to recast some of those details and to massage the vocabulary. I hope, therefore, that it is fair to say that the amendment now before your Lordships is to all intents and purposes an agreed amendment.
	I want to put on the record how much I appreciate the spirit in which the Government have approached this problem. I like to think that the operation of the new Public Guardian will be greatly improved by what we will be putting in the Bill. I beg to move.

Baroness Barker: My Lords, I rise briefly to thank the noble Lord, Lord Kingsland, for redrafting his amendment. Can he confirm that subsection (5)(b),
	"at least four members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the Public Guardian",
	is the provision that will enable carers and users to be part of the board? That was my concern when we debated the amendment at an earlier stage.

Lord Kingsland: My Lords, I am most grateful to the noble Baroness for her intervention. She will recall that, in our original amendment, we placed the emphasis on medical practitioners and chartered accountants. The noble Baroness, Lady Ashton of Upholland, quite rightly pointed out that the role of the Public Guardian was changing and that, as far as the number of chartered accountants was concerned, it was an unnecessary ingredient to specify in the Bill.
	Equally, while recognising that medical practitioners could play an important role, it was delinquent of me not to have also included carers. In the end we decided that the right approach would be to leave it open; but I know that this factor will be borne in mind when the regulations are made. I am enthusiastic that a certain proportion of those who sit on the board should have that kind of experience.

Baroness Ashton of Upholland: My Lords, I endorse everything the noble Lord, Lord Kingsland, has just said. This is an agreed amendment and I am extremely grateful to the noble Lord for raising the whole question from the beginning. On behalf of the Government, I am very happy to accept the amendment.

On Question, amendment agreed to.
	Clause 61 [Scope of the Act]:
	[Amendment No. 8 not moved.]

Lord Alton of Liverpool: moved Amendment No. 9:
	Page 34, line 39, at end insert—
	"(2) Nothing in this Act permits or authorises any decision made with a purpose of bringing about the death of a person ("P").
	(3) Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection even if made with the belief that it will bring about P's death."

Lord Alton of Liverpool: My Lords, the House will be relieved to know that this is the last amendment for our consideration today. Members of your Lordships' House have been very patient in listening carefully to all the arguments advanced at Second Reading, in Committee, on Report and again today.
	These are issues of great moment. After all, in the United States at the moment the case of Terri Schiavo is occupying many people's minds; they are agonising over the decisions being taken there. The case has required the recall of the whole of Congress to meet on Palm Sunday last and the President to break off his holiday to come back and pass a new law concerning one patient.
	We do not want to get into that kind of situation. Anyone who has followed that agonising case will know that it is precisely because we want to avoid that kind of scenario that we have spent so much time going into the detail of the amendments brought forward throughout the various stages of the Bill.
	I return now to the question of advance directives and whether or not they are covered by the scope of the Bill; and whether a suicidally-motivated advance directive should be given force in the Bill to bring about a person's death.
	Amendment No. 9 relates to the declaratory provision, which was Clause 58 but is now Clause 61. It provides that at page 34, line 39, there should be inserted:
	"(2) Nothing in this Act permits or authorises any decision made with a purpose of bringing about the death of a person ("P").
	(3) Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection even if made with the belief that it will bring about P's death".
	The Archbishop of Cardiff, Peter Smith, engaged with the Government very early on about these questions and, indeed, the Joint Committee chaired by the noble Lord, Lord Carter, also considered them. The declaratory provision was drawn up in consultation with Professor John Finnis, the Professor of Law at Oxford University, who is an internationally renowned authority on these matters. Obviously the Government believed that he was a competent witness, as it were, because they engaged with him, and were very happy to do so.
	I shared with him the debate that we had last week. I particularly drew to his attention some of the concerns raised by the noble Earl, Lord Howe, and I asked him whether it was possible to recast an amendment to deal with the issues properly drawn to our attention by the noble Earl in the correspondence that he circulated. It is on that basis that the amendment has been drawn up.
	I asked Professor Finnis what conclusion he would reach if the Bill were to pass without such a loophole being closed. He said that the Bill,
	"carelessly introduces a new culture of prescribing death by the artifice of arranged and managed omissions, or at least considerably reinforces that new culture. The government answers to our point about the circumventibility of cl.4(5), and our point about blatantly suicidal ADs, were utterly without merit or credibility".
	That is the view of the person who helped to draft the declaratory provision in the first place.
	The Archbishop of Cardiff said:
	"Professor Finnis and I believe that a further amendment is still needed to ensure that the Bill confers no authority on expressly suicidal advance decisions. We therefore strongly support efforts of Members of both Houses who are seeking to introduce an amendment to exclude decisions from being given validity or authority by a Bill where they have a purpose of bringing about death or are motivated by a desire of doing so".
	He added:
	"I very much hope the government will reconsider its opposition to inserting such an amendment, which we firmly believe can be made without affecting the jurisdiction of the courts affirmed in the Bland case".
	So, again, that is a clear statement that there is no desire to overturn Bland in the amendment. Professor Finnis was asked to draw up the amendment on the basis of that being the case, and that he has endeavoured to do.
	I should add also that the right reverend Prelate the Bishop of Winchester has e-mailed me to say that, having carefully studied this issue, he strongly supports what is being attempted today to close this loophole. Although I know that there will be divisions on the Bishops' Bench, I wish to record that because the right reverend Prelate has been a strong supporter of the positions that people such as myself have been taking throughout the course of this legislation. I pay tribute to him and thank him.
	The earlier version of the amendment was said to have faults, which I believe have been addressed. One objection was that by departing from the Bill's central principle of best interests, the amendment unhelpfully fetters both doctors and the courts. The amendment concerns, inter alia, advance decisions. The Government and the Bill have always made it clear that they are not, and cannot be, subject to the principles of best interests. We have to be abundantly clear about that. Advance decisions will thus be outside the best interests criteria and can be explicitly suicidal.
	The other criticisms depend on the assumption that the amendment's second provision, subsection (3), cuts down the ordinary meaning of its first provision, subsection (2). It does not. Subsection (3) makes it clear that one may foresee death without it being one's purpose. Subsection (3) thus expressly permits the principle of double effect to operate and to allow medical staff to make use of it.
	The amendment would not force doctors to keep treating a dying, unconscious patient, even where the treatment was futile and even where the family expressed the wish for the patient to die peacefully at home. That is important in the context of what the noble Lord, Lord Carter, said. That would not be a purpose to bring about death and would not be in this legislation. A court would no more construe the removal of futile treatment as such a purpose than it would construe it as an intention to kill.
	By contrast, the amendment would not prevent doctors giving palliative treatment to a dying patient if, foreseeably, that might shorten the patient's life. On the contrary, subsection (3) specifically invokes the principle of double effect and retains it as a valid principle. It avoids the use of words such as "intention" and "foresight" because of the meaning given those words in the case of R v Woollin. It uses the words "purpose" and "belief" in order precisely to retain the rights of doctors to give palliative treatment even if foreseeably that might shorten the patient's life. The amendment achieves that aim perfectly clearly.
	The amendment would not prevent those with certain religious convictions such as Jehovah's Witnesses and Christian Scientists making binding advance decisions refusing medical treatment—a right they have and would still have. The noble Earl raised that point. A refusal of medical treatment is not a purpose to bring about death, unless it is suicidally motivated. All now accept that Jehovah's Witnesses and others do not have such a motivation but have, instead, a religious and conscientious objection to certain types of treatment such as blood transfusions. That is not a purpose to bring about death. This is now clearer than ever in my amendment. In this form, it would be beyond doubt that in none of these three scenarios would any problem be given to doctors and patients by the exclusion in subsection (2) of the purpose of bringing about death.
	Without the amendment, we have only Clause 4(5), the best interests provision, which prevents anyone in considering a person's best interests to be motivated by a desire to bring about death. But the clause does not apply to advance decisions, as the Government have made clear. Thus, without the amendment, it will be possible under the Bill for an expressly suicidal advance decision to be legal and to be binding upon the doctor with care of the patient.
	The preservation in Clause 61 of the Suicide Act's prohibition of assisting suicide will not stop doctors being forced by the unamended Bill to engage in what many doctors and common sense regard as complicity in expressly suicidal refusals of treatment. The Government insist that Clause 61 and the Suicide Act have no relevance or application to advance decisions. Very well—then it will be possible to draft expressly suicidal advance decisions and, if the Bill is unamended, doctors will be forced to comply with them, regardless of whether they have a conscientious, Hippocratic objection.
	Suicidal motive is not a strong indicator of lack of capacity to make an advance decision when it has been made well in advance with due specificity, in writing, witnessed, with the Bill's required statement of awareness of risk, and so on, by someone known to want or support assisted suicide or euthanasia. It would often be impossible for doctors to have any honest doubt about the validity of such an advance decision. Thus they would be forced to comply with them, even against their consciences.
	It must be remembered that doctors are currently forbidden to cause harm, still less death. That is why they are forbidden to take part in executions, save to certify death. To depart from this principle is very serious and significant, but the unamended Bill does precisely that.
	Application to the court by a doctor confronted with such an advance decision, even if permitted by hospital managers, would be of no help since the court, like the doctors, will be compelled by the unamended Bill to recognise the validity of such an advance decision and therefore to require the doctor to comply with it.
	I shall say just a few words on what the amendment would not do. It begins with the words "Nothing in this Act". It would thus be restrictive only of decisions taken under the Act, and not decisions taken outside it by doctors, the courts or whomever.
	I have been careful to take legal advice about this. In particular, the amendment would not reverse the Bland decision, although I for one would be glad if it did. That decision is outwith the Bill and would be unaffected by the amendment.
	The Bill tends to fetter and restrict doctors and even the courts in ways that could be harmful to sick and vulnerable patients. Let us consider, for example, that a very old advance decision may not represent the patient's contemporary wishes, but the patient may be unable to communicate that change of mind. In that case, under Clause 3(1)(d), the patient will be taken to be lacking capacity, and so his or her advance decision will prevail, even if, unknown to the doctors and relatives, it no longer represents the patient's contemporary wishes. As the Bill stands, the advance decision will be decisive and binding. In such a case, the advance decision will have the unwanted effect of overriding the patient's change of mind because he cannot communicate it.

Baroness Hayman: My Lords, I apologise for interrupting the noble Lord, but I heard him make the same point on an earlier amendment.
	I fully accept what he said: we cannot look into the mind of someone who has lost capacity to see whether they have changed their mind, but surely that argument works the other way as well. People who had made advance decisions stating that they wished to have artificial feeding and hydration could equally have changed their mind, and, equally, doctors would be bound by the advance directive. The argument cuts both ways. It does not work only for an advance decision to refuse treatment.

Lord Alton of Liverpool: My Lords, I take the point that the noble Baroness, Lady Hayman, is making. She is right to say that such things cut both ways, but it is precisely because of that that I want to see such a provision in the Bill. It would safeguard against the abuses that can occur, particularly where the advance decision is suicidally motivated. The amendment is about that specific set of circumstances.
	If the advance decision is suicidally motivated, it will have a purpose to bring about death, and the patient may no longer wish that. It is important that the House is clear about what the Bill will do in those circumstances. Since the patient will die, contrary to his contemporaneous but incommunicable will, it will be the final act.
	It is hard, therefore, to imagine a situation where the patient's autonomy is more radically undermined and defeated. It is hard also if the advance decision is permitted to forbid life-sustaining treatment, hydration or nutrition. The patient may then needlessly die, and, in the case of foods and fluids, inevitably die, contrary to his current but incommunicable will.
	The amendment would therefore resolve that issue. It makes a clear, straightforward and relatively short point, but without it, the Bill would continue to permit that situation and, to use the language of the Bill, the patient's autonomy will be radically undermined fatally and permanently. Nobody would wish for such a tragic outcome. I beg to move.

The Lord Bishop of St Albans: My Lords—

Baroness Thomas of Walliswood: Amendment proposed, page 34, line 39, at end insert the words printed in the Marshalled List.

The Lord Bishop of St Albans: My Lords, I apologise for rising prematurely. It reminded me of a rather odd thing that happened to me once in a crematorium. I was about to press the button and heard over the tannoy system, "Charlie Bravo 50, come in, please". It was the local police car going past. I apologise for my inability to understand all the rules.
	I have the greatest respect for the noble Lord, Lord Alton, and his desire, which I share totally, that there should be no loopholes in the Bill that could be used to introduce euthanasia. But, unless I am mistaken—I really do not think that I am—there have been a number of amendments to the Bill that have closed all the loopholes possible. We have also had assurances on a number of occasions from the Minister that it is not the Government's intention to allow any such loopholes to exist that could be used for euthanasia or assisted suicide. I believe that there is also, therefore, in such statements, a matter of trust and honour. When such statements are made, I believe them, because this House is a place where honour matters greatly.
	Examples have been given about someone who makes an advance directive which says, in certain envisaged circumstances: "I wish to commit suicide and to be assisted in my suicide by the only legal means available to me—that is, by withholding life-sustaining treatment".
	At an intellectual level, that is a fascinating and rather macabre philosophical point to debate—the kind of thing that I would have debated 100 years ago, when I was at theological college. But actually, the distance in time between such an advance directive and the circumstances that then follow could be very long. I therefore find the gap between intention and outcome very difficult to comprehend.
	I believe that the example is flawed, because the person making it—or so it seems to me—is playing a semantic game, in which withholding treatment and allowing nature to take its course is then redefined as suicide. I cannot get my head around what is going on in that person's mind to redefine things in such a way, unless it is for a strangely perverse and political purpose. I suppose that it would raise a question about whether such a chain of argument could be described as being entirely reasonable. So I do not believe that those semantic games could or should be taken seriously.
	Clause 58 is fairly key, as far as I can see. The example is also flawed because there is no guarantee that the circumstances that that person imagined when drawing up that extraordinary advance directive will necessarily be the ones that apply exactly at the time. Thirdly, I confess myself baffled, as I suspect that the noble Baroness, Lady Hayman, is, about how one can actually know of a comatose person whether or not they have changed their mind. I simply cannot know. All that I have to go on therefore is what they have already said, and I have to trust that when they made that initial decision, they made it reasonably and in good faith. If I cannot know then, well, full stop—I cannot know. I suppose that the question is whether the advance directive provisions in the Bill can trump other clauses.
	I want to place on record my personal belief that this is a very remarkable Bill. It is noble and humane in its purpose and will ensure that the most vulnerable in our society, which can be and may be each one of us here today, are accorded the dignity and respect that is coterminous with being human. So I wish the Bill every success on its journey.

Lord Elton: My Lords, could the right reverend Prelate inform somebody who has come late to the proceedings but has watched from afar what the position is regarding the first leg of his argument, which related to the withholding of treatment? Does the supply of food and drink, solids and fluid, constitute treatment or not—because on that his argument depends?

The Lord Bishop of St Albans: My Lords, I am not competent in any legal sense to answer that question. If I may say so with the greatest respect, it should be directed elsewhere.

Earl Howe: My Lords, this has the appearance of a very ingenious amendment, but I want to be sure that I fully understand it. I have always understood that the legal meaning of "purpose" encompasses both intention and foreseeable consequences. Therefore, if I am correct in paraphrasing it, the first part of the amendment says that you can take a decision to do anything as long as the person's death is not the foreseeable consequence of what you are doing. If that is right, it would seem at first sight to cut across the decision in Bland which expressly foresaw that death would result from the withdrawal of treatment. I should be glad if the noble Lord could clarify that point, because, although I listened very carefully to him, I have had difficulty with it.
	My second difficulty is with the second half of the amendment. I am sure it is my fault but I just cannot get my head round it. It appears to be saying that where the decision-maker has a belief that what he is doing will bring about P's death, that is all right so long as—referring back to the first half of the amendment—the foreseeable consequence of what he is doing is not P's death. It is important that the noble Lord clarifies the distinction between foreseeable consequences and belief because I have not grasped it.

Baroness Ashton of Upholland: My Lords, the noble Lord, Lord Alton, may find it easier if we all make our points and then he can address them.
	I say to the noble Lord, Lord Elton, that we have had many discussions on the issue of giving food and drink and artificial nutrition and hydration. I can give him a pamphlet on that by an expert in palliative care. However, there is a distinction between basic care involving the giving of food and drink if someone is capable of a swallowing mechanism, and artificial nutrition and hydration which constitutes treatment as it bypasses the body's natural functions. The latter constitutes a medical intervention requiring blood tests and the observation of kidney functions. It can occasionally cause discomfort to the patient and is regarded as serious. Therefore, there is a real distinction there.
	I know why the noble Lord, Lord Alton, tabled this amendment. He has sought to correct the difficulties of the previous "purpose" amendment that was tabled. But, in fact, this amendment is even more fundamentally flawed than the previous amendment. It is completely unworkable both in law and in clinical practice.
	The noble Earl, Lord Howe, indicated that there are real difficulties with using the word "purpose" in this context. The noble Lord, Lord Lester, who is not present today, discussed this at a previous stage. I wish to be absolutely clear with noble Lords. English law is clear. We have taken advice from the widest range of lawyers on this point, including the Lord Chancellor and the senior judiciary, and they are all unanimous. The Law Lords have been explicit—"purpose" includes acting with the clear foresight that death will result. That is why the Government created new Clause 4(5) which focuses on—and bans—decision-makers being motivated by a desire to bring about the person's death.
	But the legal adviser Professor Finnis, who is advising the Catholic Archbishop of Cardiff, Peter Smith, and the noble Lord, Lord Alton, continues his use of the word "purpose" in his amendments. This means that the amendment must be read as prohibiting any decision made where there is a foresight that death will result. As we know, in a palliative care setting when patients are dying, this would mean that every decision taken by a doctor is prohibited.
	I know noble Lords will say that proposed subsection (3) is intended to remedy this, but I am afraid that it simply does not work. Proposed subsection (3) is trying to say that where a decision-maker does not want to bring about the person's death then this decision is permitted even if there is a belief that it will bring about the person's death. It is trying to get around the legal meaning of the word "purpose". But proposed subsection (3) does not achieve that. The only way to do that is to abandon the word "purpose" altogether, which is precisely what we have done in Clause 4(5).
	It is absolutely senseless to ban a "purpose", and then try to create an exception by saying that the ban does not apply if you do not have that purpose. Of course it does not. But that is what proposed subsection (3) tries to do. It states:
	"Where a decision is made for a purpose or purposes not including the purpose mentioned in subsection (2), it is not within that subsection".
	Even if this subsection made sense and was clear, it cannot possibly undo the fact that under English law "purpose" includes the foresight that death will result. It follows that subsection (3) is completely ineffective and does not act as an exception to subsection (2) at all. As such, the amendment is flawed in all the ways that we discussed on Report. That is, it would force doctors to provide treatment to dying patients even where that was not in the patient's best interests. People would have to die in hospital, not at home in comfort with their loved ones.
	It would overturn the Bland judgment, even though the Archbishop of Cardiff has said that he is content to leave the Bland decision unaffected by the Bill. Because the Bill will supersede the common law, it will occupy the field of the common law and all those decisions will be dealt with under the Bill. The noble Lord cannot argue that the Bland decision is somehow outside the Bill. It would overturn the principle of double effect and leave patients without the pain relief that they need at the end of their life. It would disallow people from refusing treatment in advance where they could foresee that death might result. No Jehovah's Witness or any other person of religious conviction would be able to exercise their right—in the case of Jehovah's Witnesses to refuse blood and in the case of other religious groups to refuse other forms of treatment—according to their religion.
	I have a couple of other points to make to the noble Lord, because we keep coming back to the question of suicidally-motivated advance decisions. I say again for the record that in the Bill we have made the position better and stronger. First, for an advance decision to be valid, it must pass the formality test. We have made it absolutely clear that it must be in writing. Doctors will no longer have to worry about whether a suicide note containing a refusal of a particular treatment is a legally binding advance decision. It will not count unless the formality tests of being witnessed, in writing, and signed, have been met. Secondly, we have made it clear that the doctor can say, "Even though I have got that, I am not satisfied". It is a subjective test, and it is much easier than the objective tests that we talked about earlier in our proceedings. "I am not satisfied that this document is a proper, valid and applicable decision, and I want to proceed with treatment". The doctor can do that.
	Thirdly, even if the formality tests are met and even if the doctor is nervous about saying that they are not satisfied, we have said in the Bill that they can treat while referring the matter to the Court of Protection. The Bill creates a new let-out. It says that nothing in an apparent advance decision stops a person providing life-sustaining treatment or preventing serious deterioration while a decision is sought from the court. The Bill does the reverse of what the noble Lord, Lord Alton, claims. It will make it much harder for any suicidally-motivated advance decision to bind a doctor. Any attempt made to request assisted suicide through an advance decision must be regarded because assisting suicide is illegal and remains illegal under the Bill.
	I have said that at every stage of the Bill. I have said it to any noble Lord who has come past my office. I have said it to the noble Lord, Lord Alton, and to Archbishop Peter Smith, and to Professor Finnis. That is the position of the Bill. I hope that the noble Lord will withdraw his amendment and see the Bill on its way.

Lord Alton of Liverpool: My Lords, I am grateful to the Minister for returning to this question and answering the points that have been made. I particularly respect the positions that she has taken personally in the course of the Bill. Many of us were struck by the passion that she showed on Report, where she said that she would rather resign her ministerial office than introduce a Bill that allowed patient-assisted dying or euthanasia. I respect her enormously for that. I agree with the right reverend Prelate about the importance of honour in these proceedings. I know that she knows that I would not have persisted with this unless I truly believed that there is a defect in the Bill that needs to be remedied.
	We disagree about the substance of the issue, and I do not think that we will resolve that question here today. I remind the noble Baroness that when in 1990 I relied on the advice of Professor Finnis against the advice of government lawyers, he proved to be right in the case of the abortion of babies with disabilities up to, and even during, birth on grounds such as cleft palate. I referred to that in a letter that I sent to the Daily Telegraph and which was published on Friday last. Therefore, just to dismiss the views of Professor Finnis and the advice that he has given on issues such as whether the Bland judgment is affected by the amendment would be foolhardy. Professor Finnis is clear that it does fall outside the scope of the amendment, as am I. Indeed, in PVS cases of this kind it would still be the right of hospital trusts to go to the courts in order to determine those matters.
	I made it clear to the noble Baroness right at the outset—and to her predecessor, the noble Lord, Lord Filkin, who is on the Government Front Bench today and who also showed great courtesy in the way in which such sensitive questions were dealt with—that, although I personally disagreed with the Bland decision, we would do nothing in the context of the Bill to try to overturn it, as that was not appropriate. We have honoured that agreement, and I do not believe that the amendment falls foul of that.
	The noble Earl, Lord Howe, asked me specifically about purpose and foresight. I mentioned R v Woollin, to which I draw his attention. In that case, a baby was dropped on its head by the defendant, and then it died. The court held that a near-certain foresight that death might result was sufficient to allow a jury to convict of murder. But a doctor might have near-certain foresight that death might be hastened by a pain-relieving drug. That also touches on the point of double effect to which the noble Baroness referred. It has always been legal and is an application of the principle of double effect. Plainly, Woollin undermines that. The amendment prevents the purpose to bring about death, but allows double effect to operate where death is foreseen but not intended or purposed.
	I think, as the noble Earl said, the amendment is an ingenious attempt to try to address the issue. Fortunately, as we are in the long grass of Maundy Thursday and as so many noble Lords have had to leave our proceedings, it would not be prudent to try to divide the House on the matter today. However, as the noble Baroness knows—it was referred to earlier—we have now incorporated 94 or so amendments in the course of our deliberations. When they go to another place, I hope that even at this late stage it might be possible to attach to one of those amendments something to remedy the issue of suicidally motivated advance directives.
	Why? Because, as the right reverend Prelate the Bishop of St Albans said, there is an enormous amount that is humane, compassionate and good in the Bill. I for one would be sorry were it jeopardised by our continuing inability to get the loophole put right. The right reverend Prelate is correct to talk about the importance of good intentions, but good law is probably more important. With those words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: My Lords, I beg to move that this Bill do now pass.
	Moved, That the Bill do now pass.—(Baroness Ashton of Upholland.)
	On Question, Bill passed, and returned to the Commons with amendments.

Regulatory Reform (National Health Service Charitable and Non-Charitable Trust Accounts and Audit) Order 2005

Baroness Andrews: rose to move, That the draft regulatory reform order laid before the House on 9 February be approved [14th Report from the Regulatory Reform Committee].

Baroness Andrews: My Lords, we are coming to the really important business of the day. The order proposes the removal of an excessive and unnecessary tier of bureaucracy imposed on NHS charities in England and Wales. NHS trustees are currently required to prepare two sets of accounts—one for the Charity Commissioner and one for the Secretary of State—and return them on different submission dates. That dual reporting does not occur in the commercial sector or any other UK government department, and can be costly and wasteful of resources.
	The order was laid before the House on 9 February, with an Explanatory Memorandum setting out the effects of the proposals. It relates to accounts of funds held on trust by NHS bodies in England and Wales. Those funds, which are separate from the main Exchequer funding held by NHS bodies, are almost invariably held for charitable purposes. It is the first order from the Department of Health to be brought under the Regulatory Reform Act 2001, although the department is considering two other areas—proposals relating to medicine licensing, and the control of certain advertising relating to cures for cancer. It demonstrates the department's commitment to regulatory reform and reducing bureaucracy.
	When the NHS was established, it took on the responsibility for the administration of the charitable funds held by hospitals operated by local authorities or voluntary concerns. It has a long history in that respect. Since then, the NHS has continued to receive and use donated funds. The funds are administered by NHS bodies as corporate trustees, or by separate bodies of trustees appointed for the purpose. They may be restricted for specific purposes requested by the donors, or be held for any general health service purpose.
	At the end of financial year 2003–04, these funds were valued at over £1.6 billion. The trustees spent almost £350 million from the funds to provide benefits to patients and staff that supplement those from public funding. The order affects only accounts prepared by NHS bodies about these donated funds. It does not extend to other charities associated with the NHS, for example those administered by hospital leagues of friends.
	The main effect of the order is set out in paragraph 2. This removes the requirement in existing legislation for NHS bodies in England and Wales to prepare two sets of accounts for their charitable funds, one for submission to the Department of Health or the National Assembly for Wales and the other to the Charity Commission. This requirement has been in place since the Charities (Accounts and Reports) Regulations 1995 came into force. Related costs have to be met by the charitable funds themselves, which inevitably reduces the benefits that they may provide.
	The order removes this dual accounting burden by requiring NHS bodies to submit the accounts of their charitable funds only to the Charity Commission. It will thus bring NHS charitable bodies broadly in line with other charities. However, there will continue to be restrictions on appointments of auditors for these funds. For England, the auditors will continue to be appointed by the Audit Commission. In Wales, the Auditor General for Wales will audit the accounts.
	Article 2 of the order also refers to non-charitable funds held on trust by NHS bodies. As I indicated earlier, virtually all funds are held for charitable purposes. The exception will be where funds are donated for the support of an individual patient, or for such a small and specific group of patients that it does not qualify as a charitable purpose. That is extremely rare.
	However, the Select Committee on Delegated Powers and Regulatory Reform, in paragraph 17 of its report on an earlier draft of the order, raised a concern about these non-charitable funds held on trust. The Government amended the draft order to take account of these comments and the trustees of non-charitable funds will be required to continue to prepare separate accounts for these funds, which will be audited. So we responded to the Select Committee in that respect. The accounts will be available on request, but the trustees in England will not be required to submit the accounts to the Department of Health for summarisation and presentation to Parliament. In Wales, trustees will submit the accounts to the National Assembly for Wales but they will not be summarised. Yet again, the requirement is less onerous than the current requirements and is proportionate to the benefit expected of it.
	Article 3 of the order introduces provisions to allow further reductions in the burdens on smaller funds which have annual income and expenditure of £250,000 or less. The decision on whether to require a full audit, or a less detailed examination, is for the Audit Commission in England, or the Auditor General for Wales for funds in Wales. This provision provides further opportunities for reducing costs, leaving more of the funds to meet donors' wishes. Again, that is something that we all wish to see.
	As a consequence of these changes, the Department of Health and similarly the National Assembly for Wales will no longer be required to prepare summarised accounts of these funds for examination by the Comptroller and Auditor General or the Auditor General for Wales and presentation to Parliament. We were pleased that the Select Committee and consultees accepted that there was adequate protection without the summarised account, as the charity accounts and reports are available on request from the NHS bodies and the Charity Commission. In particular, the rights of the Comptroller and Auditor General and the Auditor General for Wales to access and inspect both the charitable and non-charitable funds have been maintained.
	This order does not impact on foundation trusts which are already required to submit similar accounts, but only to the Charity Commission.
	The Delegated Powers and Regulatory Reform Committee considered the revised order and recommended that the draft order,
	"is in a form satisfactory to be submitted to the House for affirmative resolution".
	So, I am grateful to the members of the Select Committee for the time spent scrutinising the proposal and coming to that decision.
	The order has been approved by the National Assembly for Wales. It will bring savings to the charitable funds that, based on the responses to the consultation, were estimated to be between £420,000 and £480,000 annually. So we have a genuine reduction and simplification of the process of accounts without any loss of transparency or accountability, and a saving to charities themselves. In that spirit, I hope the order will find favour with noble Lords.
	Moved, That the draft regulatory reform order laid before the House on 9 February be approved [14th Report from the Regulatory Reform Committee].—(Baroness Andrews.)

Earl Howe: My Lords, very briefly, I thank the noble Baroness for her clear exposition of the order and say that the measure is definitely to be welcomed.
	The charitable funds to which she referred can take a number of forms, but I take it that the chief beneficiaries, if I can describe them in that way, will be the special trustees of special trust funds held by a number of London teaching hospitals, for example, but also other hospitals around the country.
	The noble Baroness said that foundation trusts were not encompassed by the regulations because they had already been exempted from the dual submission of accounts. Can she tell me whether any other types of NHS body do not fall within the ambit of the regulations?
	Finally, I should be grateful if the Minister could confirm that, when the regulations were out for consultation, the responses received from NHS bodies were universally favourable. Judging from what she said, I am sure that that was the case, but it would be helpful to have it on the record.

Baroness Barker: My Lords, I can think of absolutely no better way to end today's proceedings. Noble Lords may know that charity accounts are very close to my heart. Charity accounts and the NHS—what a great way to finish.
	I thank the noble Baroness for her, as ever, full introduction to the subject. I accept much of what she said—certainly about the cost savings—but I have one or two questions to put to her. I listened carefully to what she said. At the beginning of her speech, she said that these were the only bodies in either the NHS or the private sector that were subject to dual reporting. In the voluntary sector, thousands of organisations are subject to dual reporting because they are both a company and a charity. However, there is a crucial difference: they submit the same set of accounts to the two bodies. The noble Baroness stated that the problem was that people had different accounting periods. I wonder whether much of the difficulty could have been addressed by aligning the two accounting periods rather than changing the bodies.
	I have two further questions. I note what the regulations say about the requirement on the trusts to comply, as do all other charities, with the charity SORP and, in particular, what they say about the thresholds above which one has to have audited accounts and below which one can have an independent financial review. I notice that there is a proposal for that to change, and I ask the noble Baroness whether that is predicated, as it appears to be in the Explanatory Memorandum, on the Charities Bill going ahead—it is currently proceeding through your Lordships' House—or whether it is simply a matter that the trusts will have to follow the new charity SORP.
	I am slightly intrigued about one matter. The noble Baroness talked about non-charitable funds being held on trust. Sadly for her, I understand the difference between charitable income and non-charitable trading, restricted income and so on. Am I right in assuming that some trusts, governed by trustees, are the recipients of income that has been derived from non-charitable trading? I apologise to the Minister that this is real helmet and anorak stuff, but it is very interesting because the real question is how one knows that charitably given resources are not being used to subsidise statutory functions. That is the question at the heart of this order.

Baroness Andrews: My Lords, when the noble Baroness stood up, I thought that she was going to say, "I have absolutely no questions", but no such luck. Although there are so few noble Lords in the Chamber, in different stages in our relationships with charities, we have all tangled with charitable trusts and funds.
	I shall answer the questions raised by the noble Earl first. He asked me whether special trustees would be the main beneficiaries. They will certainly benefit, but so will others with smaller funds to manage. There will be a general benefit. I said that foundation trusts are not covered by the order but, in addition to them, special health authorities are not covered by it. One special health authority, the National Blood Service, has charitable funds of £1.1 million, raised for some purpose.
	I was asked whether the accounts will be less accessible. I do not think that that will be the case because duplication did not mean that accounts were more accessible, it just meant that two sets were submitted in two different directions at different times of the year. Copies of accounts will continue to be available on request from the bodies or from the Charities Commission.
	Turning to questions raised by the noble Baroness, this order is about ensuring that when anybody raises charitable funds, irrespective of whether they have a trading arm, the funds are used for the purposes for which they were intended. As the noble Earl said, in our large teaching hospitals we have had a tradition where huge sums of money have been raised over the years for general purposes, charitable purposes, scanners, building new wards, supplying new equipment and so on. There is a long and honourable tradition.
	The noble Earl asked whether the responses to the consultation were universally favourable. Yes, they were. People wanted to see this change brought about. The change has a lot of support behind it.
	The noble Baroness asked about dual reporting and the different accounting systems. It is, I suppose, possible that we could have addressed the point about the financial year, but what we have done has a much clearer set of benefits. Altering financial year provisions would not have gone far enough. The summarising of reports and similar provisions in this order are very beneficial.
	The noble Baroness asked whether this order complies with SORP—which is an acronym rather than some strange new accounting term—and whether the thresholds for audit are predicated on the Charities Bill. The benefits apply with and without the provisions of the Charities Bill, so the answer to her question is, "Yes, sort of". In relation to the comparison with the voluntary sector, NHS bodies do not generally get that kind of income. My advice is that they focus on the charitable aspect of their work and see no reason to set up the trading arms that are so common in the voluntary sector.
	I hope that with those answers noble Lords will feel satisfied that both inside and outside the House there is acclamation for this order and that we can all go home and celebrate Easter with a light heart.

On Question, Motion agreed to.

Baroness Farrington of Ribbleton: My Lords, before moving that the House do now adjourn, I wish noble Lords and all our staff, not forgetting our Hansard writers, a very pleasant Easter. I beg to move that the House do now adjourn.
	House adjourned at eleven minutes before six o'clock until Monday 4 April at half-past two o'clock.